AN INQUIRY INTO THE CULTURE, PRACTICES AND ETHICS OF THE PRESS

Contents

Volume I

Volume II

Volume III

Volume IV

CHAPTER 1
THE ANNOUNCEMENT

1. Introduction

1.1 On, 13 July 2011, the Prime Minister made a statement to the House of Commons in these terms:1

“In recent days, the whole country has been shocked by the revelations of the phone hacking scandal. What this country—and the House—has to confront is an episode that is, frankly, disgraceful: accusations of widespread lawbreaking by parts of our press: alleged corruption by some police officers; and, as we have just discussed, the failure of our political system over many, many years to tackle a problem that has been getting worse. We must at all times keep the real victims at the front and centre of this debate. Relatives of those who died at the hands of terrorism, war heroes and murder victims—people who have already suffered in a way that we can barely imagine—have been made to suffer all over again.
I believe that we all want the same thing: press, police and politicians who serve the public. Last night the Deputy Prime Minister and I met the Leader of the Opposition. I also met the Chairs of the Culture, Media and Sport Committee, the Home Affairs Committee and the Justice Committee to discuss the best way forward. Following these consultations, I want to set out today how we intend to proceed: first, on the public inquiry; secondly, on the issues surrounding News International’s proposed takeover of BSkyB; and thirdly, on ethics in the police service and its relationship with the press.
Before I do that, I will update the House on the current criminal investigation into phone hacking. I met Sir Paul Stephenson last night. He assured me that the investigation is fully resourced. It is one of the largest currently under way in the country, and is being carried out by a completely different team from the one that carried out the original investigation. It is being led by Deputy Assistant Commissioner Sue Akers, who I believe impressed the Home Affairs Committee yesterday. Her team is looking through 11,000 pages containing 3,870 names, and around 4,000 mobile and 5,000 landline phone numbers. The team has contacted 170 people so far, and will contact every single person named in those documents. The commissioner’s office informed me this morning that the team has so far made eight arrests and undertaken numerous interviews.
Let me now turn to the action that the Government are taking. Last week in the House I set out our intention to establish an independent public inquiry into phone hacking and other illegal practices in the British press. We have looked carefully at what the nature of the inquiry should be. We want it to be one that is as robust as possible— one that can get to the truth fastest and also get to work the quickest, and, vitally, one that commands the full confidence of the public. Clearly there are two pieces of work that have to be done. First, we need a full investigation into wrongdoing in the press and the police, including the failure of the first police investigation. Secondly, we need a review of regulation of the press. We would like to get on with both those elements as quickly as possible, while being mindful of the ongoing criminal investigations. So, after listening carefully, we have decided that the best way to proceed is with one inquiry, but in two parts.
I can tell the House that the inquiry will be led by one of the most senior judges in the country, Lord Justice Leveson. He will report to both the Home Secretary and the Secretary of State for Culture, Media and Sport. The inquiry will be established under the Inquiries Act 2005, which means that it will have the power to summon witnesses, including newspaper reporters, management, proprietors, policemen and politicians of all parties, to give evidence under oath and in public. …
Starting as soon as possible, Lord Justice Leveson, assisted by a panel of senior independent figures with relevant expertise in media, broadcasting, regulation and government will inquire into the culture, practices and ethics of the press; its relationship with the police; the failure of the current system of regulation; the contacts made, and discussions had, between national newspapers and politicians; why previous warnings about press misconduct were not heeded; and the issue of cross-media ownership. He will make recommendations for a new, more effective way of regulating the press—one that supports its freedom, plurality and independence from Government, but which also demands the highest ethical and professional standards. He will also make recommendations about the future conduct of relations between politicians and the press. That part of the inquiry we hope will report within 12 months.
The second part of the inquiry will examine the extent of unlawful or improper conduct at the News of the World and other newspapers, and the way in which management failures may have allowed it to happen. That part of the inquiry will also look into the original police investigation and the issue of corrupt payments to police officers, and will consider the implications for the relationships between newspapers and the police. Lord Justice Leveson has agreed to these draft terms of reference. I am placing them in the Library today, and we will send them to the devolved Administrations. No one should be in any doubt of our intention to get to the bottom of the truth and learn the lessons for the future.”

1.2 The Terms of Reference were then the subject of further discussion both with the devolved administrations of Scotland, Wales and Northern Ireland and other interested parties. The Prime Minister returned to the topic on 20 July 2011, when announcing the appointment of the Assessors. He said:2

“We have made some significant amendments to the remit of the inquiry. With allegations that the problem of the relationship between the press and the police goes wider than just the Met, we have agreed that other relevant forces will now be within the scope of the inquiry. We have agreed that the inquiry should consider not just the relationship between the press, police and politicians, but their individual conduct too. We have also made it clear that the inquiry should look not just at the press, but at other media organisations, including broadcasters and social media if there is any evidence that they have been involved in criminal activities.”

1.3 Thus, the Terms of Reference of the Inquiry, as finally drafted, are:

part 1
  1. To inquire into the culture, practices, and ethics of the press, including:
    1. contacts and the relationships between national newspapers and politicians, and the conduct of each;
    2. contacts and the relationship between the press and the police, and the conduct of each;
    3. the extent to which the current policy and regulatory framework has failed including in relation to data protection; and
    4. the extent to which there was a failure to act on previous warnings about media misconduct.
  2. To make recommendations:
    1. or a new more effective policy and regulatory regime which supports the integrity and freedom of the press, the plurality of the media, and its independence, including from Government, while encouraging the highest ethical and professional standards;
    2. for how future concerns about press behaviour, media policy, regulation and cross-media ownership should be dealt with by all the relevant authorities, including Parliament, Government, the prosecuting authorities and the police;
    3. the future conduct of relations between politicians and the press; and
    4. the future conduct of relations between the police and the press.
part 2
  1. To inquire into the extent of unlawful or improper conduct within News International, other newspaper organisations and, as appropriate, other organisations within the media, and by those responsible for holding personal data.
  2. To inquire into the way in which any relevant police force investigated allegations or evidence of unlawful conduct by persons within or connected with News International, the review by the Metropolitan Police of their initial investigation, and the conduct of the prosecuting authorities.
  3. To inquire into the extent to which the police received corrupt payments or other inducements, or were otherwise complicit in such misconduct or in suppressing its proper investigation, and how this was allowed to happen.
  4. To inquire into the extent of corporate governance and management failures at News International and other newspaper organisations, and the role, if any, of politicians, public servants and others in relation to any failure to investigate wrongdoing at News International
  5. In the light of these inquiries, to consider the implications for the relationships between newspaper organisations and the police, prosecuting authorities, and relevant regulatory bodies – and to recommend what actions, if any, should be taken.

1.4 By letter dated 28 July 2011,3 as responsible Ministers under the Inquiries Act 2005, the Rt Hon Jeremy Hunt MP (then the Secretary of State for Culture Media and Sports) and Baroness Browning (then a Minister of State at the Home Office) appointed me to Chair the Inquiry pursuant to s3(1)(a) of the Act. On the same date, their appointment having previously been announced by the Prime Minister, acting pursuant to s11(2)(a) of the Act, the Ministers appointed six Assessors with a wide range of professional experience to assist the Inquiry. These were Sir David Bell,4 Shami Chakrabarti CBE,5 Lord (David) Currie,6 Elinor Goodman,7 George Jones8 and Sir Paul Scott-Lee.9

1.5 From the day of the announcement of my appointment, it was necessary to identify appropriate support. A Director General with a legal background and experience at the Home Office, the Ministry of Justice and the Office of the Deputy Prime Minister, Rowena Collins Rice was an ideal appointment as Secretary to the Inquiry. Kim Brudenell, a senior solicitor from the Treasury Solicitor’s office was appointed Solicitor to the Inquiry; Amanda Jeffery (from the Judicial Office) and Rachel Clark (from the Department of Culture, Media and Sport and previously the Department for Business, Innovation and Skills) were appointed as Heads of Administration and Research respectively. With an eye on prudent financial management, suitable civil servants from across Government were recruited to staff the Inquiry and ensure that it could proceed expeditiously and efficiently.

1.6 I also set about appointing counsel. With the assistance of the Treasury Solicitor, I selected Robert Jay QC to be Counsel to the Inquiry; with my approval he nominated David Barr and Carine Patry Hoskins as junior Counsel, later adding Lucinda Boon for Module 2 (concerning the relationship between the press and the police). Counsel were assisted by junior members of the Bar in relation to the necessary research for both preparing the examination of witnesses and the subsequent collation of the evidence.

1.7 At the very beginning of this Report, it is appropriate to record my enormous gratitude to the Assessors, to Counsel and to the entire Inquiry team (whose names are set out in Appendix A to this Report) for their unstinting commitment to the Inquiry and the prodigious effort that has been put into ensuring that it proceeded smoothly, to budget and, most important, was able appropriately to address the Terms of Reference within a time frame that aIlows early consideration to be given by the Government and Parliament to the way forward.

2. Role of the assessors

2.1 From the outset, challenges were mounted by a number of press interests to the way in which the Inquiry was set up and, in particular, to the experience, role and responsibility of the Assessors. Having obtained cross party support for their appointment, when identifying them by name,10 the Prime Minister said of them “these people have been chosen not only for their expertise in the media, broadcasting, regulation and policing, but for their complete independence from the interested parties.”

2.2 At the opening session of the Inquiry, I spoke of the Assessors having“a central role in the work” so that the report would be a “collaborative effort” and that if a particular recommendation was not unanimous, “I shall make the contrary view clear.” It was argued that this would make the Assessors into members of the panel pursuant to s4 of the Inquiries Act 2005 and that they lacked balance on the basis that their number included nobody with tabloid or mid- market newspaper experience.

2.3 In a ruling of 17 October 2011,11 I rejected the view that the Assessors were a hybrid between assessors within the meaning of s11 of the Inquiries Act 2005 and members of the determining panel (as set out in s4). I set out the role for assessors in para 3 of the Assessor Protocol in these terms:12

“An assessor will take such part in the proceedings of the Inquiry as the Chairman may request, and in particular the Chairman may at any time request an assessor to:
  1. Attend the whole or part of any hearing, seminar or briefing; and/or
  2. Chair the whole or part of any seminar in an area of his or her expertise; and/ or
  3. Prepare a report for the Chairman on any matter relevant to the Inquiry within the area of expertise of the assessor; and/or
  4. Provide to Counsel to the Inquiry suggested lines of questioning for witnesses, in respect of any matters within his or her expertise; and/or
  5. Provide the Chairman with any other assistance, or advice, on any matter relevant to the Inquiry within the expertise of the assessor.”

2.4 In the event that an Assessor prepared a report that I intended to take into account, paragraph 4 of the Protocol made it clear that it should be disclosed to the Core Participants (who could submit observations upon it) and thereafter published as part of the evidence. In the event, I have not asked any Assessor to prepare a report that I intend to take into account; there is no question of any providing me with ‘evidence’ or other material which it is appropriate to share with Core Participants in order that they may make submissions about it. The extent to which the Assessors would take part in or impact upon my conclusions was also explained in my ruling which includes a description of their role and responsibilities in these terms:13

“30. The assessors also bring an understanding of the practical implications of potential ways forward – what may, or may not, work in the fields of their respective expertise. It is that to which I refer when I speak of being collaborative and ‘striving for unanimity’. There is absolutely no point in my suggesting a way forward (if different from the present system) that everyone decries as unworkable; if that were my provisional view, I would want to be told. The process I envisage would entail, amongst other things, seeking the assistance and advice of my assessors but, as I have also explained, I may also test out possible solutions in further seminars. Again, with fairness as my touchstone, if I believe that new material is generated, that material will be shared so that all can make submissions upon it.
31. Ultimately, however, as I have made very clear, my conclusions shall be solely my conclusions. There is no question of publishing concurring views. In the spirit of openness and transparency, however, I shall identify the fact that one or more of the assessors disagrees with my conclusions and I shall explain the nature of the disagreement: in that way, those who read my report will be able to make up their own minds.”

2.5 The Assessors have been scrupulous to follow the approach set out in the Protocol and ruling. They have assisted in relation to avenues of investigation and lines of enquiry both generally and to specific witnesses. Although there has been repeated criticism of the Inquiry for not engaging an assessor with experience of tabloid or mid-market newspapers (along with suggestions that nobody working in a broadsheet newspaper would be able to understand the dynamics of tabloid or mid-market journalism), nobody has suggested in evidence that the approach to ethical issues should be different. In any event, far from ignoring the different interests to which tabloid and mid-market newspapers appeal, the Assessors with experience of journalism have been assiduous to keep me aware, both in advance and as I was hearing the evidence, of the arguments that have in fact been put forward in favour of the needs of this profitable sector of the market. In doing so, they have continuously emphasised the perspective that was trailed particularly by Trevor Kavanagh and Kelvin MacKenzie in the seminars and underlined by editors and journalists working for titles from these sectors when they gave evidence. They have kept at the front of my mind the ways in which those titles appeal to their very large readership and the vital importance of ensuring that it is taken into account in full measure – which I have done.

2.6 The role of the Assessors was described by me in my ruling of 17 October 2011, when I said:14

“27. It is obviously desirable (as the Prime Minister and others have identified) that I obtain advice and assistance from those who have made their lives and careers in the various areas covered by the Inquiry, in particular in relation to dealings between the press and the public, the press and politicians and the propriety of press contact with the police. Not least, this is because I would be keen to understand any flaws or unintended consequences that might flow from suggestions that are advanced that my lack of experience would not otherwise identify. That is not to make the assessors advocates for any particular cause and that is not how I (or they) see their role.”

2.7 Neither has any of the Assessors sought to act as an advocate. It has recently been suggested in a number of press reports that, in the some way, I have been subject, on the part of my Assessors, to hidden lobbying, political partisanship or self-interested influence with specific agendas in mind. That is untrue. Having spent over 40 years seeking to persuade or influence, or listening to others trying to do the same, if it had been attempted or even crept in unconsciously, I would have detected it very quickly. I have found the assistance of my Assessors, in their areas of expertise and experience, invaluable. They will, however, not mind my saying here what I have assured them of many times as we have gone along: that my task in response has been to sift, weigh and test what they have said and make such use of it as seems to me right.

2.8 It should be remembered that the Assessors were selected by the Prime Minister who, I repeat, described them as having been chosen “for their complete independence from the interested parties”. The Leader of the Opposition welcomed the Inquiry and “indeed the panel members chosen by the Prime Minister”. After they were nominated, I spoke to each at length and satisfied myself that the Prime Minister was right.

2.9 Full declarations of possible conflict were made by each before the start of the Inquiry: along with their CVs, these have been published on the Inquiry website throughout. When challenging the position of the Assessors in the argument that led to the ruling to which I have referred, Jonathan Caplan QC for Associated Newspapers Ltd submitted that the three journalist Assessors were not representative of the industry but made it clear, in terms, that he recognised that there was no statutory requirement that an Assessor be impartial.15 I underline that. It is an Assessor’s task to offer me the benefit of his or her personal perspective, expertise and experience. It is mine to take the impartial view.

2.10 The duty of confidence which the Assessors owe by law in relation to the internal deliberations of the Inquiry is there to enable them to provide their expertise fully and frankly and to protect them from external pressures. In fact, nothing that the Assessors have said or done during the course of the Inquiry would allow anyone to suggest that they had gone any further than precisely to perform the role set out in my ruling. I make one further point about the Assessors. None has been concerned with or involved in any the decisions of fact, where I have had to make my mind up about what I considered had been established to the relevant standard. Those parts of the Report that depend only on a forensic analysis of issues of fact or issues outside their expertise (for example, Part I, Chapter 6 in relation to the bid for the shares of BSkyB plc), have not even been seen prior to publication of the Report.

3. Visits

3.1 In an effort, at least in part, to assuage concern that I had no experience or perception of the issues faced by the newspaper industry and the way in which newspapers operate, I have been very willing to receive evidence on the topic. Additionally, I offered to undertake private visits to any newspaper title that invited me. I was clear that one such newspaper should be regionally based and, prior to the commencement of the Inquiry, I visited the Southern Daily Echo in Southampton, the offices of Associated Newspapers Ltd (The Daily Mail and The Sunday Mail), Trinity Mirror plc (The Daily Mirror, The Sunday Mirror and The People) and News International Ltd (The Sun, The Times and The Sunday Times). I was treated with courtesy at each and shown not only the layout and operation but also aspects of the production of online editions.

3.2 Towards the end of the hearings, I was invited to the offices of the Press Complaints Commission: having regard to the very extensive evidence that I had received both as to the operation of the Commission and the approach of its staff, I felt that to do so could give rise to misunderstanding and, furthermore, did not consider that it would add to my understanding of the issues. In the circumstances, I declined that invitation.

CHAPTER 2
THE APPROACH

1. Setting up and preliminaries

1.1 This Inquiry is unlike any other for a number of reasons. The principal reason concerns the way in which Inquiries are generally conducted. Usually, an event such as a disaster or other type of incident giving rise to public concern occurs. The natural anxiety is to learn, first of all, what precisely has caused the event to happen and, thereafter, what should be done to prevent repetition. Albeit based on an inquisitorial model (with Counsel to the Inquiry conducting the forensic investigation), a judicial inquiry will thereafter proceed rather as any judicial investigation or trial might. Witnesses to the incident will be called and the Inquiry panel will then exercise the usual functions of a judge sitting alone and ‘find’ the facts, that is to say, on the balance of probabilities, reach conclusions as to what actually happened. This exercise will usually involve deciding precisely what, as a matter of fact, caused or led to the event, who was responsible for making what decisions and what impact those decisions have had.

1.2 A civil (or criminal) trial would then go further and determine the standard required by the civil (or criminal) law and decide whether that standard has been met. If it has not, civil (or criminal) liability will result. In the former case, damages or some other remedy will follow to benefit those who have suffered injury or financial loss as a consequence. A conviction in a criminal trial will lead to the imposition of a sanction or sentence. An Inquiry, however, does not lead to these consequences. Although the facts will be found as to what has happened and why, an Inquiry will go on to recommend steps that might be taken in the future to avoid similar problems. There is and will be no determination of civil or criminal liability.1

1.3 The difference in the case of this Inquiry is the fact of the criminal investigations being undertaken by the Metropolitan Police Service (MPS). The most important are Operation Weeting (into the interception of mobile telephone messages), Operation Elveden (into the payment of police officers, and, indeed, others holding public office or position, by the press) and Operation Tuleta (into other forms of computer hacking). These and other subsidiary investigations are proceeding apace and, during the course of the Inquiry, there have been a large number of arrests with journalists and others being bailed for further inquiries to be made. In a number of cases,criminal prosecutions have been commenced; these are presently awaiting trial and I anticipate that there will continue to be developments in the period which follows the publication of this Report. This is the reason for the Inquiry being split into two parts (with the question “who did what to whom” generally falling within Part 2, which is intended to follow the conclusion of any criminal prosecutions). One consequence, however, is that any investigation of the facts has inevitably been circumscribed, in particular, by an inability to investigate the full detail of specific criminality in the core areas of interception of mobile telephone voice mail messages and alleged bribery of public officials.

1.4 This limitation must be put in context. Concern about this type of activity constituted an important factor leading to the establishment of this Inquiry and the issue cannot be ignored: it is one of the central reasons for public concern about the conduct of the press (or sections of it). In relation to each of those who have been charged or arrested, however, criminal proceedings are active (within the meaning of the Contempt of Court Act 1981).

1.5 This has two consequences, the implications of which are important. First, to avoid prejudice to any criminal investigation or prosecution, there are inevitable limitations on the extent to which it is appropriate to examine the evidence relating to specific incidents of such practices, let alone in relation to the identification of those who might have been involved. Second, the rights of those who have been charged or arrested must be respected and, in particular, their right not to self incriminate must be protected. This could arise either by the Inquiry inviting answers to potentially incriminating questions or, inferentially, by putting them in a position that refusal to answer questions itself generates suspicion. In the circumstances, none of those who have been arrested has been asked questions about interception of voice mail messages or payments to public officials.2 Taking full account of these issues, however, the rights of individuals do not mean that it is inappropriate to consider, as a matter of generality, the extent to which there was a recognised and understood willingness to obtain information in this way albeit in some cases, perhaps, without knowledge of (or, at the very least, due regard to) the relevant criminal law.

1.6 In any event, Part 1 of the Terms of Reference covers very much more than this activity. In relation to the press and the public, quite apart from the admirable journalism conducted entirely in the public interest, and journalism which sets out simply to entertain harming nobody, its culture, practices and ethics cover many other types of conduct which have been the subject of complaint. Without intending to create a definitive list, these include deception (‘blagging’), bullying (by reporters of members of the public and by editors of reporters in order to obtain stories), breaches of privacy and harassment, other forms of intrusion, misleading or inaccurate stories or headlines whether deliberate or accidental, discrimination and other conduct that breaches the Editors’ Code of Conduct.

Scope

1.7 This Inquiry has covered the “culture, practices and ethics of the press” which obviously includes newspapers whether printed or online: it does not include broadcasters (ultimately regulated by Ofcom). Thus, although the Director General of the BBC, then Mark Thompson, gave evidence,he did so only to provide a comparison between the approach adopted internally by the BBC Trust along with the oversight from Ofcom. In those circumstances, although there have been many calls during the Inquiry for me to expand the terms of reference to investigate other organisations (most recently the BBC in the wake of the allegations against Sir Jimmy Savile), it is simply outside the Terms of Reference within which I am working.

1.8 Part 1 also covers the culture, practices and ethics of the press across a far wider canvass than the way in which it deals with the public. It is concerned with the relationship between the press and the police. This encompasses allegations that the two have become far too close, involving the payment of money or the provision of other favours for inside information, prior notice of newsworthy incidents or participation in high profile operations (including presence at arrests). It also covers the cross fertilisation of employment with retired senior police officers being engaged as newspaper columnists and journalists being employed in PR departments or as PR advisers by police services. Part 1 also deals with the relationship between the press and politicians including, in particular, the perception that, in return for political support, politicians have been too ready to allow undue influence to be exercised in relation to policy and that, in any event, the relationship between the two has not been transparent.

1.9 Taken together, this remit is almost breathtaking in its width and, from the beginning, I have been extremely conscious of a number of very significant consequences of the task that I have undertaken and the need to cope with those consequences. First, it would be all too easy to allow an investigation of the issues to spiral out of control and to become far too enmeshed in detail at the expense of the overall picture. Examples could be provided of concerns which focus on individual aspects of the Inquiry and it would be entirely legitimate to subject each to detailed analysis, providing the opportunity to anyone affected or potentially affected to challenge the inferences to be drawn. In some cases, for good reason, detail at that level has, indeed, been necessary. The contrary approach, with no attention paid to specifics, would risk creating an overview that is far too general and has little value as a true narrative of events.

1.10 The need to ensure a balanced approach to the facts has to be reflected in the context of the second consideration. That is the broad time frame within which it important for me to report. I put it in that way because, without suggesting that the period of one year identified by the Prime Minister constitutes (or was intended to constitute) a straight-jacket, the imperative to deal with this issue is real; public concern at the time of the closure of the News of the World (NoTW) was intense and it is important to address the problems that were perceived and are now recognised in relation to the regulation of the press as a matter of urgency.

1.11 In any event, this consideration chimes with the question of cost. At a time of fiscal austerity for the public and increasing pressure on the commerciality of the newspaper industry, it was always important that time and the resources of both were well used and not wasted on an analysis of detail that was too extensive and unnecessary for the purposes of providing a sufficient narrative. Cost is not just about legal and other financial outlay, whether by Core Participant members of the public who do not qualify for legal assistance, public authorities such as the police or police authorities, the newspaper industry or the Ministries required to fund the running of the Inquiry. Cost also encompasses the energy and time commitment of all whether participant or witness, both in responding to calls for evidence (which, in some cases, has involved an enormous amount of work) or attending to give oral evidence.

Engagement

1.12 The third consideration has been my anxiety to ensure that the industry is fully engaged in the process and to avoid the risk that this imposed Inquiry requires or has meant that their only role is to be reactive or, perhaps more serious, entirely defensive. In that regard, one concern (evidenced in fact) has been that parts of the press would consider that I approached the Inquiry without the necessary and, in my view, entirely appropriate enthusiasm and absolute commitment to freedom of expression and the independence of the press; and that this concern would fashion their approach to the Inquiry, impact on the assistance that they provided and colour the way in which they viewed any conclusion I might reach. A subsidiary concern has been that whatever view I might have about these fundamental freedoms, I would change them in the light of what they perceive to be unbalanced evidence of problems. Of course, as many have reported, it has been inevitable that a large body of the evidence would be uncomfortable for the press, if not worse, and that the positive features of our press both at a national and regional level would be lost in the welter of criticism, although reflective consideration will demonstrate that any Inquiry of this nature will inevitably focus on the problems. As I will repeat at various stages throughout this Report, I am very conscious that most journalism, most of the time meets high standards and can compete with the best journalism in the world; the Inquiry has been concerned with that which does not.

1.13 The fourth consideration has been the interests of the public. I have made the point that the public interest in the issues identified in the Terms of Reference is intense and, in my judgment, correctly so. It has thus been vital to ensure that the Inquiry proceeded in a way that engaged the public and provided appropriate access to it. By access, I do not mean only that the hearing of the Inquiry would be in public for that goes without saying. The concern has been to find ways, first, of providing the public with information as to the framework of law and regulation within which the press operate; second, of ensuring that the public has maximum access to the evidence and the material which forms the basis of my Report; third, of allowing and encouraging the public to feed their views into the Inquiry without losing the necessary judicial rigour with which any Inquiry must be conducted or creating the perception that I am effectively engaged in what is little more than a substantial exercise in public consultation.

1.14 I approached these problems in a number of different ways which I explain in chronological order of them being put into practice. In order to provide some coherence to the evidence and so that the public could understand the approach of the Inquiry, the Terms of Reference were split into four modules: the Press and the Public, the Press and the Police, the Press and the Politicians and, finally, the Future. The first three modules were designed to provide the platform for focused evidence broadly dealing with the topic in question. I say ‘broadly’ because I have not wanted to trouble witnesses with necessarily having to return to give evidence for each module. Thus, during the module concerned with the Press and the Public, the relevant editors were asked about payments or other inducements to police officers (which is Module Two), along with questions about meetings with and influence upon politicians. Conversely, certain witnesses (and, in particular, Rupert Murdoch, James Murdoch, Rebekah Brooks and Andrew Coulson) were, or at least could be (subject to allowance in the cases of Mrs Brooks and Mr Coulson to the fact that, at the time they gave evidence, they had been arrested as part of the police investigation and have now both been charged) central to a number of modules and I took the view that it was more sensible to deal with all aspects of the Inquiry towards the conclusion of the oral evidence.

1.15 Furthermore, the fourth module (the Future) was not intended, as might have been thought, to be free-standing. From the outset, I have been concerned to challenge all or most of the witnesses to provide ideas for the future. I have then tested them with other witnesses and encouraged a continued dialogue between all those affected by the issues which are the subject matter of the Inquiry. In that way, I have endeavoured to ensure that, parallel to the Inquiry, others (including the industry, academic journalists and those interested in this area) engage in dialogues to ensure that all possible mechanisms for regulation are examined and considered. The purpose of Module Four, therefore, was to test possible approaches and so ensure that the final Report did as much as it possibly could to take account of all concerns and reflect a solution that not only balances the legitimate interests of all those affected by the way in which the press goes about its business, but also provides a solution, or series of solutions, that have been submitted to rigorous analysis and, hopefully, can work in the real world.

Briefing sessions

1.16 In addition to splitting the Terms of Reference into four modules, I took other steps to provide sufficient bedrock on which to build consideration of the evidence as to the need for change and the future. Having signalled my intentions and rejected submissions that it would not be appropriate to proceed in this way,3 the second preliminary step was to organise a series of briefing sessions to set out the technical, legal and regulatory framework both for me and the assessors.

1.17 Although running contrary to my fundamental approach to the Inquiry, I agreed that the technical briefing (to explain methods of interception of telephone and IT systems) should be conducted in private, on the basis that there was no justification for putting into the public domain methods whereby the unscrupulous could learn how to commit what are, in fact, criminal offences. An approved summary of that briefing is, however, available and has been posted on the website. The other briefings concerned the criminal and civil law framework within which the press operate and the regulatory framework, both in relation to the press (presently through the Press Complaints Commission PCC) and also in other, comparatively related, industries. Although these briefings were not recorded, transcripts were prepared and anyone interested in the subject matter of the Inquiry has been in a position to acquaint themselves with the framework of law and regulation in order better to understand the issues that the Inquiry intended to address. These briefings are not formal parts of the record of the Inquiry; I am, however, satisfied that they accurately reflected the current position and, where those who provided them gave evidence, they were happy to incorporate into the record what they said at the briefings.

Seminars

1.18 The third preliminary step, after the briefing sessions, was to seek to widen understanding of the background and the present state of the industry while at the same time distilling the issues and starting the debate. This was taken forward by three seminars held over two full days. Again, these seminars are not formal parts of the record but, again, in the case of all those who gave presentations or otherwise contributed and who later attended to give evidence, each attested to the accuracy of what he or she then said and accepted that their contribution should be taken as part of their evidence. In each case, after a formal presentation, there was an open debate before an invited audience. The seminars were recorded and a transcript of the day was also prepared: along with the briefing sessions, these remain available on the website and can all be accessed on the website both to watch and to read.4

1.19 The first set of seminars, on Thursday 6 October 2011, was called “The Competitive Pressures on the Press and the Impact on Journalism”. It was chaired by Sir David Bell, supported by Elinor Goodman and George Jones, and received presentations from Claire Enders of Enders Analysis on the competitive pressures facing the press today; Phil Hall (former editor of the NoTW, Hello! Magazine and director of the editorial department at Trinity Mirror plc) on how the press operates in a competitive environment and the pressures facing editors; and Richard Peppiatt (formerly a reporter on the Daily Star) on the day to day effect of competitive pressures on working journalists. The second seminar, similarly chaired, was called “The Rights and Responsibilities of the Press” and received first a presentation from Alan Rusbridger (editor-in-chief of the Guardian) on why a free press matters. This was followed by Trevor Kavanagh (formerly political editor and now an associate editor and political columnist on The Sun) and Professor Brian Cathcart (formerly deputy editor of The Independent on Sunday and now Professor of Journalism at Kingston University and a founder of the Hacked Off campaign), both of whom spoke about whether there is a difference between the public interest and the interest of the public and what questions this raised in relation to a single set of journalistic ethics.

1.20 The second day of seminars was held on Wednesday 12 October 2011. The third seminar was called “Supporting a free press and high standards – Approaches to Regulation”. The morning was chaired by Lord Currie, supported by Shami Chakrabarti. Presentations were provided on the future for self regulation from the different perspectives of a regulator, an editor and a user by Eve Salomon (a former PCC Commissioner and currently Chair of the Internet Watch Foundation), Paul Dacre (editor-in-chief of Associated Newspapers Ltd and chair of the Editors’ Code Committee of the PCC) and Will Moy (Director of Full Fact, an independent fact-checking organisation) respectively. The role of corporate governance was considered by Lord Borrie (formerly Director General of Fair Trading and thereafter Chair of the Advertising Standards Authority), Stephen Hill (formerly Chief Executive Officer of the Financial Times and now a non-executive director of Channel Four television) and Sly Bailey (then Chief Executive of Trinity Mirror plc).

1.21 In the afternoon, chaired by Shami Chakrabarti supported by Lord Currie, redress for breach of standards was discussed by Professor Steven Barnett (Professor of Communications at the University of Westminster), Desmond Browne QC (a leading media silk and formerly Chairman of the Bar)5 and Professor Robert Baldwin (Professor of Law at the London School of Economics specialising in regulation). Finally defending freedom of expression was the subject of presentations by John Kampfner (then Chief Executive of Index on Censorship), Professor James Curran (Professor of Communications at Goldsmiths, University of London and Chair of the Co-ordinating Committee for Media Reform) and Kelvin MacKenzie (a columnist for The Sun and the Daily Mail, formerly editor of The Sun and managing director of BskyB and Mirror Group Newspapers).

1.22 It is not necessary to summarise the views expressed either in the presentations or by the others who contributed to the seminars. To such extent as they have been incorporated into the record of the Inquiry (which, during the course of subsequent evidence, most have), they will be reflected in the analysis that follows. What is important to emphasise, however, is that, with very limited exception, all the speakers saw and took the opportunity of the seminars to analyse where recent events were leading and had led the business, industry or profession of journalism; in my view, this did a great deal to open up the issues to a wider audience.

1.23 Without minimising any contribution from any speaker, I particularly mention Mr Dacre who, while challenging the justification upon which the Inquiry was set up (including the credentials of those participating in it), identifying what he described as paradoxes in the current furore over the press and seeking to de-bunk what he called myths surrounding the PCC, went on to recognise the need for reform if trust was to be regained and made a number of suggestions which openly and emphatically started the debate as to the future. This was a very important recognition of the need for change which, coming from an extremely important player in the industry, was of enormous value. It is a matter of record that, as he was perfectly entitled to do, he later resiled from at least one of the suggestions that he then made.6

1.24 These seminars had another value, which was to allow me to signal (as I have repeated many times throughout the Inquiry) that I saw the best solution as one that both the press and the public would accept as a realistic approach to the issue of regulation. The recognition that the PCC no longer held the confidence of the public (whatever might have been the position in the past) was a vital stepping stone to identifying a system that would achieve the legitimate aims of the press while, at the same time, satisfying the legitimate aspirations of the public. It is obviously important that the system works for the press and that, preferably, it is acceptable to them. However, it is even more important – indeed critical – that it works for the public in the sense that the public accept that the press are able to pursue legitimate investigative journalism that is in the public interest, but, at the same time, can be held to account for abuses of the freedoms which they have to pursue stories which have no discernible public interest and whether those abuses are criminal, tortuous, or merely contrary to any recognised code of legitimate journalistic practice. I believed that the editorial representatives of the press appreciated that, if it was accepted that the PCC could no longer continue as it had, this goal was a fundamental requirement of the Inquiry.

1.25 I ought to add that I initially intended to hold further seminars for different aspects of the work of the Inquiry.7 In the event, as evidence became available, I decided that the impetus which had been the extremely valuable result of the first series of seminars did not require repetition. It was sufficient for public understanding of the work of the Inquiry and its direction for Counsel, Robert Jay QC, to open each module in turn, explaining precisely what it was intended to achieve and the direction that the Inquiry would take. That understanding was also aided by the identification and publication of key issues for each of the modules which, in turn, generated public response.

Broadcasting

1.26 The fourth preliminary step in relation to the broad approach concerned the extent to which it would be appropriate to allow cameras into the Inquiry room to record the evidence and thereafter to stream it live onto the Inquiry website. On the one hand, I was conscious that it would create pressure on witnesses who wished to protect their privacy and, as a result of the presence of a permanent record of their evidence, could serve to undermine that privacy. It would also serve to increase the day to day pressure on Counsel and all others participating in the work of the Inquiry. On the other hand, I recognised the significant public interest in what the Inquiry was doing and seeking to achieve, along with the very real importance in ensuring that the evidence was available for all to see in a form that was unmediated by press or other reporting. I dealt with my concern in relation to the witnesses who complained of press intrusion by ensuring that all who gave oral evidence were volunteers and understood that their evidence would be streamed on the website and available to be seen in the future; it is for that reason that I particularly recognised the value of their participation when each gave evidence.

1.27 In the event, I am satisfied that the decision to stream the work of the Inquiry (and to enter into appropriate contractual relationships with television broadcasters as to the use to which it may be put) was entirely justified. Sky News and the BBC devoted a considerable proportion of time to televising the hearings and other media news channels used the footage both on television and as part of their online reporting.

1.28 When dealing with the topic of televising the Inquiry, it is important to sound a note of caution. I am conscious that a number of people have used the valuable impact of the reporting of the Inquiry in support of the argument that all court proceedings should be capable of being televised and that the present restrictions contained within s41 of the Criminal Justice Act 1925 should be removed. Although the experience of the Inquiry can inform any such debate, it is important to provide the context. The press and other professional witnesses were subject of notice under s21 of the Inquiries Act 2005 (and so were required to provide evidence and, when appropriate, attend the Inquiry). However, as I have said, the witnesses who complained about press intrusion were volunteers and understood that their evidence would be streamed and available on the website; cross examination was limited or non- existent. In very few cases, steps were taken to preserve anonymity of appearance if not identity. In a criminal trial or family proceedings, civilian witnesses are victims, involved in personal tragedy or accidental (and, in many cases, reluctant) participants in the process of justice; they can be cross examined at length and, frequently, as to their credit. To film their evidence (particularly in high profile cases) would be to subject them to intolerable and damaging pressure which would most certainly not be in the interests of justice.

1.29 Returning to the impact of the other preliminary steps that I have outlined, the briefings and the seminars had the intended effect. In addition to eliciting responses from those who were either invited to provide evidence or, pursuant to notice under s21 of the Inquiries Act 2005, were required to do so, many other interested parties and the members of the public did engage in the process of the Inquiry.

Core Participants

1.30 Running at the same time as the briefings and seminars, as a fifth preliminary step, it was necessary to determine who should be entitled to Core Participant status for any or all of the modules of the Inquiry and to decide how the Inquiry should proceed in the light of any representations that Core Participants might make. I decided to separate out applications for Core Participant status for each of the four modules, on the basis that although many interested parties would have equal interest in all aspects of the Inquiry (and so were granted on a blanket basis from the outset), a number might only be concerned with fewer aspects of the Terms of Reference. In the circumstances, I invited applications for each of the modules and dealt with them on that basis. Although deadlines for such applications passed, in the main, I considered each, whenever it was made, on its merits and ruled in accordance with the letter and spirit of Rule 5(2) of the Inquiry Rules 2006.8

The approach to evidence

1.31 The sixth, and final, preliminary issue concerned the steps that I should take, while seeking to obtain a narrative of facts, to ensure that I did not prejudice any criminal investigation or potential prosecution and, at the same time, maintain a balanced and fair approach to others said to have been involved in illegal or unethical methods of gathering stories. In relation to the former, having invited submissions at an early stage (in particular from the Director of Public Prosecutions and the police), I ruled on the appropriate approach to evidence in relation to those charged with criminal offences or under investigation. My conclusion is summarised at para 1.16 above.9 Fairness (as required by s17(3) of the Inquiries Act 2005) has, however, taken me further for I have not felt it appropriate to protect the names of those who have been arrested from being linked to specific allegations of criminal conduct, while affording no such protection for those alleged to have been involved in other criminal (or, in some cases, unethical) conduct which is not being investigated (and therefore gives rise to no risk of prejudice).

1.32 This approach has been criticised by those who wish to expose what is said to be the greater criminality revealed by a study of the documents seized by the Information Commissioner during Operation Motorman (the arrest of a private detective, Steve Whittamore), involving a very much greater section of the press than those seized by the police during Operation Caryatid (the arrest of Glenn Mulcaire, now being revisited in Operation Weeting). However, it is entirely consistent with the fact that the Terms of Reference are divided into two parts and that this first Part concerns the culture, practices and ethics of the press rather than individual conduct. Throughout the Inquiry, there are references to what I have described as the ‘mantra’ that I have not presently been concerned with ‘who did what to whom’ but culture practices and ethics. To the mantra, I have added what I have called the ‘self-denying ordinance’ that, although the Inquiry has investigated with individual journalists conduct which is not the subject (or likely to be the subject) of police inquiries, so that the question of self incrimination does not arise, in the main, I have extended similar protection to individual journalists and others who are not currently the subject of any investigations.10 This approach has not been inflexible because it has been critically important to ensure that an appropriate narrative of fact is available, against which to judge the efficacy of the present system of self regulation promulgated through the Press Complaints Commission and any proposals to amend or replace that system.

1.33 I can illustrate this necessary inhibition on what I have been able to do with a simple example. In his first statement to the Inquiry, the editor of The Times, James Harding, made a passing reference to a single instance of computer hacking. This was not investigated further at that time but, in a masterly analysis, David Allan Green linked the reference to the exposure of a blogger known as Nightjack. That led to a letter and a further statement from Mr Harding which resulted in his being recalled to give evidence. Because the Nightjack incident had been the subject of litigation, the then legal manager of The Times, Mr Alastair Brett, appeared at the Inquiry when the matter was analysed in some detail. On the basis of this evidence, it would certainly be possible to draw a number of important conclusions about what happened at The Times and about internal governance and legal risk management. However, because the journalist who was said to be at the centre of this incident has now been arrested for offences of computer hacking and attempting to pervert the course of justice, it is not appropriate to risk prejudice to that investigation or to any possible trial by further discussing it.

1.34 A further consequence of this has been the need to avoid the possibility of inferential criticism of those who are currently the subject of criminal investigations. So, for example, a criticism of the governance arrangements at a particular newspaper, whether in general terms or directed at particular members of the management team, could, by implication, be interpreted as a criticism of others, elsewhere within the organisation. The requirement on me to tread this careful path might mean that some readers of this Report are surprised that a number of senior executives who gave evidence are not subject to the criticisms that might otherwise have been expected or, at least, discussed. It is, however, the consequence of the imperative not to or cause substantial prejudice to the investigation or prosecution of allegations of crime.

2. The gathering and presentation of evidence

Module One

2.1 As I have explained, many public inquiries follow some incident or event which has immediately been the subject of police or other investigation, so that the product of that investigation will be able to form the basis body of evidence upon which the inquiry can rely for its facts. In the case of this Inquiry, however, although aspects of the Terms of Reference had been or were the subject of litigation,11 the police investigation was ongoing. Although the Inquiry obtained evidence both from the civil and public law actions, the collection of evidence even for Module One (the press and the public) required trawling from a very wide range of people including (a) individuals who complained that they have been the subject of press criminality or intrusion (one of whom gave evidence with the benefit of complete anonymity),12 (b) newspaper proprietors, editors, journalists13 and support staff (including, in relation to News International, external lawyers), (c) freelance journalists, campaign groups and others who have been concerned about press conduct, (d) photographers (including paparazzi) and private detectives, (e) mobile phone operators, (f) the police and Director of Public Prosecutions, (g) the Information Commissioner and his staff, (h) the Press Complaints Commission, (i) academic journalists and (j) bloggers and internet sites. The remaining modules required different groups of people or different individuals within the relevant organisations.

2.2 Section 21(2) of the Inquiries Act 2005 provides that I could require any person, within such period as appears to be reasonable to provide evidence in the form of a written statement (including documents). For each module, save in relation to those who complained about press intrusion (whom I considered ought to have the opportunity to decline to give evidence in public about their complaints of invasions of privacy) and a number of the most senior politicians, I decided that all witnesses would be required pursuant to the Act to assist me: this was not intended to reflect a concern that witnesses would not be prepared to volunteer their assistance (as, I believe almost without exception, all were) but rather to ensure that there was a consistency of approach across all those whom the Inquiry approached. Such requests could only be made after the Inquiry had formally commenced (at the end of July 2011) and it was obviously essential to give everyone to whom requests for evidence had been addressed sufficient time to submit considered evidence. Given the summer, this meant that most of the evidence was not, in fact, available until the autumn. It then had to be assimilated and, eventually, made available to Core Participants for any comment prior to it being called.

2.3 In addition to witnesses whom the Inquiry approached, an invitation was posted on the website inviting members of the public and other interested individuals or groups to submit evidence directly to the Inquiry.14 It is worth setting out the key questions posed which were as follows:

“The Inquiry is currently looking at the relationship between the press and the public. We’re interested in hearing from professionals and the public with information and examples in response to the specific questions below. Your answers may be considered as potential evidence to the inquiry.
  1. The Inquiry needs to understand how newsrooms operate, particularly in the tabloid and mid-market sectors. Can you provide a personal account of culture, practices and ethics in any part of the press and media?
  2. Seminar debates have suggested that commercial pressures were not new, were not unique to the press, and did not impact adversely on standards of journalism or ethical behaviour. The Inquiry would be interested in submissions on this, with examples where possible.
  3. Some seminar attendees suggest reader loyalty limits competition between titles. Professional competition to be first or best with a story, though, could be a powerful force. Other participants suggested some papers put journalists under significant pressure to produce a story within a tight timeframe. The Inquiry would be interested in experiences of the competitive dynamics in journalism and how that impacts on the way in which journalists operate, with examples where possible.
  4. With the advent of the internet and 24 hour news as well as declines in revenue and circulation, we have heard that fewer journalists are having to do more work. The seminars also raised the issue of the casualisation of the workforce. The inquiry would be interested in experiences of how this may have changed the culture in newsrooms and what it might mean in terms of journalistic practice, with examples where possible.
  5. The issue of stories that attract a high degree of press attention but subsequently turn out to be false was raised at the seminars. The Inquiry would be interested in submissions from editors, reporters and subjects of such stories - why they occur (what are the pressures that drive press interest), and how they occur (what checks and balances are or should be in place to stop this happening and why do they sometimes not operate)?
  6. One seminar attendee suggested that the National Council for the Training of Journalists does not teach ethics. The Inquiry would be interested in experience of how ethics are taught and promulgated amongst journalists.
Standards
  1. Attendees proposed that the general law, as it applies to everyone, should be the only constraint on the press. The inquiry would welcome submissions on whether, and if so why, the press should be subject to any additional constraints in relation to behaviour and standards, for example relating to accuracy, treatment of vulnerable individuals, intrusion, financial reporting or reporting on crime, other than those imposed by existing laws.
  2. Editors at the seminars argued that the Editors’ Code was a good set of standards to work to. The Inquiry would be interested in submissions from all parties on the coverage and substance of the Editors’ code including accuracy and redress for those who are affected by breaches of the code.
  3. It has been argued that the statutory regulation and impartiality requirements that apply to broadcasting do not chill investigative reporting on television. Broadcasters are able to rely on the printed press to break controversial stories and then follow on behind. The inquiry would be interested in submissions on the extent to which the regulatory regime for broadcasting casts a chill on broadcast reporting and the relationship between the printed press and broadcast media as a result of the different regulatory environments.
Public interest
  1. The Inquiry has heard strong arguments for the importance of a free press in a democratic society. The Inquiry would be interested in submissions on the special role to be played by the press in a democracy, what ‘freedom’ requirements need to be in place for that role to be played and the whether this role places any obligations or responsibilities on the press.
  2. We’ve heard arguments that sometimes it will be in the public interest for journalists and media organisations to do things that would otherwise be ethically or legally questionable. The inquiry would be interested in submissions on the extent to which, if at all, should acting in the public interest be a complete or partial defence in relation to unlawful or unethical activity in pursuit of journalism; and, if so, subject to what conditions.
  3. In practice any public interest argument would need to be considered in the context of specific cases. The Inquiry would be interested in submissions on who should be responsible for reaching decisions on whether something is in the public interest, and on what basis. Illustrative examples would be helpful.”

2.4 It has been suggested that the Inquiry never engaged with the public, and therefore never engaged with those who purchase tabloid or mid-market papers, with the result that the evidence has been in some sense skewed or biased against the millions who read that type of paper. In fact, as discussed below, members of the public (with different interests in the work of the Inquiry) did respond to this invitation and it proved an extremely valuable resource for material which the Inquiry would not otherwise have obtained. Further, a number of witnesses and groups who availed themselves of the opportunity to provide views and material were later invited to attend to give evidence orally so as to develop the issues which had been raised. As for the risk that only those with some criticism of the press might respond, as the questions make clear, the Inquiry was equally anxious to hear in support of the press as in criticism of it.

2.5 The briefings, seminars, and the collection, examination and distillation of the evidence meant that it was not possible to start the formal hearings of the Inquiry until Monday 14 November 2011, when Robert Jay QC made an opening statement, followed by opening statements from the Core Participants. Witness evidence commenced on Monday 21 November 2011 and, for Module One, continued until 9 February 2012: 175 witnesses gave evidence over a period of 40 days and the evidence of further witnesses was read into the record of the Inquiry not only while Module One was ongoing but also, as it emerged, throughout the Inquiry and, where appropriate, even after the formal hearings had concluded. This latter process has given rise to misunderstanding which I have frequently sought to correct during the course of the Inquiry but which it is appropriate to make very clear.

2.6 While the evidence on Module 1 was proceeding, a number of submissions were received from campaigning groups who argued that the approach of the PCC to third party complaints was such that there was no avenue for redress in the absence of a identified ‘victim’ who was prepared to pursue a complaint on his or her own behalf. In particular, therefore, generic complaints (of misleading and inaccurate reporting of issues such as immigration, domestic violence and others) were unchallengeable. This was not simply a complaint about tone or balance (although there were such concerns as well) because it was well understood that newspapers, unlike broadcasters, were perfectly entitled to be partisan in their views. Rather, it was to do with factual accuracy and consequent comment. To that end, arrangements were made for evidence to be given from, among others, Inayat Bunglawala (Engage), Heather Harvey (Eaves Housing for Women), Anna Van Heeswijk (OBJECT), Jacqui Hunt (Equality Now), Marai Larasi (End Violence against Women) and Helen Belcher (Transmedia Watch). As explained by Fiona Fox (Science Media Centre) misleading and inaccurate reporting of conceptual issues (such as climate change or science generally) were similarly not covered by the complaints system.

2.7 Submissions from different groups continued to be received covering other areas of extremely important social awareness; these included, among others, submissions concerning the treatment afforded by the press to the young, the mentally ill, the disabled and other groups in society, some of which were vulnerable and others the particular subject of press concern.15 All make the same or similar points to those which the Inquiry had already heard, albeit from the different perspective of the particular concern of that specific campaign. Quite apart from the question of the available time (given the very wide-ranging Terms of Reference and the other evidence that it was essential to capture), the question arose whether it was necessary to call this evidence orally in order to make the points that were developed in writing.

2.8 In the event, I decided that it was not necessary to call more evidence; however, arrangements were made for each of these submissions (as with all other evidence read into the Inquiry) to be circulated to Core Participants so that if any advanced a reason why the evidence should not received into the record of the Inquiry, that argument could be considered. In the event, no objection was received and all this evidence was ‘read into’ the Inquiry record. That means that it is published as part of the evidence of the Inquiry: I have read it and, where appropriate, included references to parts of it in this Report. What I am very anxious to emphasise, however, is that I do not consider that any of this evidence was ‘second class’ or to be accorded a lesser status to the evidence that was adduced orally: it has all been important and it has all been considered. The same can be said of the submissions to the Inquiry made by others (not necessarily relating to campaigning groups concerned with third party complaints) which, having also been read into the record, has become part of the evidence in the Inquiry.

2.9 As I deal with evidence that was read into the record but not called before me, I ought also to deal with complaints that were made to the Inquiry that were not adduced as evidence, not because they were not relevant to the Terms of Reference but, rather, because they were both complex and highly fact-sensitive. This would have resulted in a considerable amount of time being devoted to investigating the circumstances, without there being any corresponding value to be derived as to the generic culture, practices and ethics of the press (rather than the behaviour of those titles involved in the particular facts being examined). One example will suffice.

2.10 In March 1997, a private investigator, Daniel Morgan was murdered in South East London. There have been five police inquiries into the circumstances of his death and it has been alleged that his partner, Jonathan Rees, might have been involved in his murder (he was later acquitted when the prosecution were unable to guarantee his right to a fair trial following the discovery by the police of four undisclosed crates of material). Mr Rees had been employed by the NoTW and, the nature of the relationship has been the subject of media comment. I can well understand why Mr Morgan’s family saw the Inquiry as an opportunity to uncover information about his death (and Mr Rees clearly visualised that possibility because he applied for Core Participant status on the basis that he might be the subject of criticism). Whether there should be an inquiry into this particular case is not for me to say: it is sufficient if I repeat the explanation that to have examined the issues arising would have taken weeks or months and I did not consider that the very limited time available for this Inquiry was best deployed in that way. In the event, although I made it clear that Mr Rees could make a statement for the Inquiry, he has not done so.16

Module Two

2.11 That conveniently brings me to Module Two which started on 27 February 2012. The evidence touching the relationship between the press and the police had been obtained and assimilated while Module One was proceeding. Once again, key questions for this module were also published on the website17 which, again, generated considerable public interest. The questions (which provide a good overview of some of the issues which the Inquiry was to consider in this module) were as follows:

“The Inquiry is now looking at the relationship between the press and the police. We’re interested in hearing from professionals and the public with information and examples in response to the specific questions below. Your answers may be considered as potential evidence to the Inquiry and may be published in a redacted form as part of the Inquiry’s evidence.

Culture, practices and ethics
  1. The Inquiry needs to understand how the relationship between the press and the police currently operates. The Inquiry would be interested in the experiences of police officers, other police staff, and journalists as to how the relationship between the press and the police works in practice.
  2. The Inquiry would be interested in the experiences of police officers, other police staff, and journalists as to how the current Police Service policies and guidance in place to regulate the relationship between the press and the police work in practice.
  3. The Inquiry would like to build up an overall picture of the nature and level of the interaction that currently exists between the police and the press. The Inquiry would therefore be interested to receive submissions on the type and frequency of contact which currently exists between police officers, other police staff, and the media (differentiating between local and national media contact), with examples where possible.
  4. The internet, 24 hour news and social media has brought new challenges for both the police and the press. The Inquiry would be interested in the experiences of police officers, other police staff, and journalists on how this may have altered the relationship, and whether the Police Service policies and guidance in place have kept pace with this changing environment, with examples where possible.
  5. The Inquiry would be interested to receive views on the level of awareness and experience that exists within the Police Service of “media crime” (the unlawful interception of communications, bribery of officials by the media and harassment by paparazzi and journalists, for example), with examples where possible.
  6. The Inquiry would be interested to receive views as to whether the Police Service governance arrangements, policies and guidance currently in place are sufficient to sustain a transparent and ethical relationship between the police and the press which at the same time upholds the confidentiality and rights of the victims of crime and the public more generally.
  7. The Inquiry would be interested to receive submissions on what Police Service training, governance and oversight arrangements exist, and views on whether it is sufficient, to ensure that acceptable boundaries exist between the police and press, with examples where possible.
  8. The Inquiry would be interested in the experiences of journalists about whether you have ever felt under any pressure not to report a story involving a police officer or member of police staff (detailing where and from whom the pressure came), with examples where possible.
  9. The Inquiry would be interested to receive submissions from police officers, other police staff, and journalists on the extent to which formal and informal interaction between the press and the police is recorded for the purposes of transparency (are such records audited, and if so by whom, for example). Information control and disclosure:
  10. The Inquiry would be interested to receive submissions on the extent to which systems are in place (and an assessment of whether they are adequate) to identify, prevent, manage and investigate police data leaks and breaches.
  11. The Inquiry would be interested in the experiences of the victims of crime and the public more generally, who feel that they have been adversely affected (perhaps through a data leak or breach, or through the reporting of a case) by the current relationship between the press and the police, with examples where possible. The Inquiry would also be interested to receive submissions in relation to this issue on whether it is felt that the current investigation and complaint regime are adequate to properly address instances of this type.
  12. The Inquiry would welcome submissions on how the police and the media working together is and can be of benefit to the public, with examples where possible.
Professional Standards
  1. The Inquiry would like to receive views as to whether it is felt that adequate governance and oversight arrangements are in place for police officers and other police staff to ensure the effective management and recording of gifts and hospitality, secondary business interests, associations and conflicts of interest.
  2. The Inquiry would be interested to receive views as to what type of payments, gifts or hospitality (if any) you consider to be legitimate transactions between police officers, other police staff, and the media, and is and should the approach to payments, gifts or hospitality between the press and the police be different to the approach between the police and other parties.
  3. The Inquiry would be interested to receive views as to whether there should be rules in place to govern how and when police officers and other police staff leaving the Police Service can take up posts with the media, commercial or other bodies, with examples of when such a move has been problematic or brought advantages where possible.
  4. The Inquiry would be interested to receive views as to whether there should be rules in place to govern how and when members of the press, or the media more generally, can take up posts with the Police Service, with examples of when such a move has been problematic or brought advantages where possible.”

2.12 At a more specific level, Module Two covered a number of different topics. First, it involved a consideration of Operation Caryatid from its inception, following a complaint by the Royal Household in relation to the interception of mobile phone messages, through to the commencement and impact of Operations Weeting, Elveden and Tuleta. To that end a number of police officers gave evidence, along with the relevant Directors of Public Prosecutions and leading counsel instructed in the prosecution of Clive Goodman and Glenn Mulcaire. Second, it concerned the more general relationship over many years between the press and the MPS, thereby involving witnesses who complained about the impact of that relationship upon themselves; the last four Commissioners and the present Commissioner of the MPS, together with many very senior officers and ex officers and personnel from the Department of Public Affairs; and journalists who had considered the relationship and crime journalists who depended upon it. Third, evidence of comparison with other regional police forces and the regional press was called both from Chief Constables, other ranks and press departments, as was evidence of the approach of the Association of Chief Police Officers. Fourth, reports prepared by the Chief Inspector of Constabulary (Sir Denis O’Connor) and, for the Commissioner of the MPS (by Elizabeth Filkin), and the views of police authorities (including the relevant regulator for the MPS, the Mayor’s Office for Policing and Crime) also fell to be considered. This evidence broadly concluded on 4 April 2012, with the Inquiry having heard from 93 witnesses over 23 days.

2.13 As I have indicated above, the evidence of a number of witnesses covered all four modules. That was particularly so in relation to Rupert Murdoch, James Murdoch, the proprietors of other newspaper groups and a number of senior staff from News Corporation or News International. This group of seven witnesses gave evidence (over two weeks in April and May 2012) between Module Two concerning the press and the police and Module 3 concerning the press and politicians.

Module Three

2.14 Module Three formally opened on 10 May 2012 and involved evidence over a period in excess of four weeks from 44 witnesses. These included some of the most senior politicians of the last 20 years (including the present and last three Prime Ministers, the Deputy Prime Minister, the Leader of the Opposition and the First Minister of Scotland), senior civil servants, special advisers and political journalists. The primary concern was the relationship between politicians of all political hues and the press, together with the impact (whether in reality or as a matter of perception) of such relationships as existed on the development and implementation of policy concerning the press. Political challenges came to the fore, however, in particular concerns about the handling by the present Government of the bid by News Corporation for those shares in BSkyB Ltd which were not already owned or controlled by Rupert Murdoch. Although only one of a number of issues regarding the relationship between politicians and the proprietors and editors of mass market newspapers over the last 30 years, the questions that arose (being of contemporary political concern) came to dominate aspects of the Inquiry. There was particular interest in an issue arising from Parliamentary Questions addressed to the Secretary of State for Culture, Olympics, Media and Sport, which were the subject of a detailed account in his statement to the Inquiry.18 In the event, these Parliamentary Questions were not then pursued in the House of Commons; they were examined, at some length, when Jeremy Hunt MP gave evidence.19 This module continued until 14 June 2012, although aspects were further examined on 25-26 June.

2.15 As with the first two modules, key questions regarding the relationship between the press and politicians were identified and placed on the website20 for consideration and comment by any interested group or member of the public. Again, it provides useful context for the work of the Inquiry to set these questions out at this stage:

“The Inquiry is now looking at the relationship between the press and politicians. We are interested in hearing from professionals and the public with information and examples in response to the specific questions below. Your answers may be considered as potential evidence to the Inquiry and may be published in a redacted form as part of the Inquiry’s evidence.
  1. The Inquiry is interested in the extent of public knowledge and understanding of the relationship between the media and the politicians. Where does that knowledge come from? How is it tested? What use is made of publicly available information (for example about meetings between senior politicians and leading media figures)? Has the change to the Ministerial Code in July 2011 made a difference? (The Code now states: “the Government will be open about its links with the media. All meetings with newspaper and other media proprietors, editors and senior executives will be published quarterly, regardless of the purpose of the meeting”.)
  2. The Inquiry would like to hear views on the specific benefits and risks to the public interest arising from relationships between senior politicians, at a national level, and the media. What does the public stand to gain from this relationship? What does it stand to lose? How can the gains be maximised and the risks minimised? Are there specific considerations the Inquiry should be aware of in the run up to general elections and other national polls?
  3. The Inquiry is interested in hearings views on the conditions that are necessary for a free press in a democracy to fulfil its role in holding politicians and the powerful to account. What is the nature of that role? What is the public entitled to expect of the press in fulfilling it? How can the public see for itself that the press is taking this role seriously and going about it responsibly? Are there some good examples?
  4. Is there a perception that political journalism generally has moved from reporting, to seeking to make or influence political events? How far is there evidence for that, and should it be a matter of public concern or not? Does the press have a legitimate function in fulfilling a political Opposition role?
  5. The Inquiry is interested in the nature of media influence on public policy in general (for example in areas such as criminal justice, immigration or European policy). Do you have views, or any specific examples, about how that influence is exercised and with what effect? How transparent is the process? Is the public well served by it?
  6. The Inquiry is particularly interested in the influence of the media in the content and timing of a party’s media policies, and in a Government decision-making on policy or operational issues directly affecting the media. Do you have any personal examples of how this works in practice? Are the media effective lobbyists in their own causes? Do any risks arise from the Government’s role in the determination of takeovers and/ or mergers of media organisations? Is there a need for additional safeguards or limits on such involvement?
  7. Is there a need for plurality of voice in news providers within the press, in providers of other types of news media or across the media as a whole? How does access to news information through the internet affect the need for plurality? What level of plurality is required? Is plurality of ownership a sufficient proxy for plurality of voice?
  8. Is there evidence of media influence on public and political appointments (including the tenure and termination of those appointments)? The Inquiry is interested in examples, including of cases where the public interest was, and was not, well served by such influence.
  9. How far do you think politicians feel inhibited from acting in the public interest to ensure that the media’s conduct, practices and ethics are themselves in the public interest? Why might that be? What would make a difference?”

Module Four

2.16 Module Four commenced on 9 July 2012 and the Inquiry heard from 30 witnesses. This module was initially described as involving a discussion of ‘emerging findings’. In the event, it was clear that the Press Board of Finance (PressBoF) and the current chair of the PCC had embarked upon the process of re-casting self-regulation; this Module therefore consisted of a detailed examination not only of that model but also a substantial number of other models for the regulation of the press that had been submitted as evidence to the Inquiry. To encourage that process and assist those devising potential solutions to the problems of press regulation, the Inquiry published Draft Criteria for an Effective Regulatory Regime.21 These were not intended to be definitive but merely illustrative of the issues that had to be addressed. These criteria were as follows:

“In module 4 the Inquiry will hear proposals for potential press regulatory solutions. There are three aspects to the question of what regulatory regime should apply to the press in the future: firstly what a regulatory regime should do; secondly how it should be structured to achieve that; and thirdly the detailed rules that are put in place to achieve the objectives. The ‘what’ is about outcomes and the ‘how’ is about processes, structures and accountabilities. The detailed rules would be dealt with in the substance of any code or regulations. These three aspects of a regulatory regime need to be considered separately as they are not necessarily dependent on each other and it may be possible to achieve the desired objectives by different combinations of solutions.
The Inquiry has already heard a number of suggestions in relation to the ‘how’ and the purpose of module 4 is to look at those suggestions in more detail. In order to facilitate the scrutiny of the ‘how’ proposals it is necessary to understand ‘what’ any regulatory solution is seeking to achieve. The draft criteria for a regulatory solution below set out the criteria against which the Inquiry proposes to measure potential regulatory solutions. The Inquiry would welcome comments on these criteria.

Draft Criteria for a Regulatory Solution

1. Effectiveness
1.1 Any solution must be perceived as effective and credible both by the press as an industry and by the public:
  1. It must strike a balance, capable of being accepted as reasonable, legitimate and in the public interest by all.
  2. It must recognise the importance for the public interest of a free press in a democracy, freedom of expression and investigative journalism, the rule of law, personal privacy and other private rights, and a press which acts responsibly and in the public interest.
  3. It must promote a clear understanding of ‘the public interest’ which would be accepted as reasonable by press, industry and public alike.
  4. It must be durable and sufficiently flexible to work for future markets and technology, and be capable of universal application.
2. Fairness and objectivity of Standards
2.1 There must be a statement of ethical standards which is recognised as reasonable by the industry and credible by the public. This statement must identify enforceable minimum standards as well as articulating good practice that should be aimed for.
2.2 All standards for good practice in journalism should be driven by the public interest and must be benchmarked in a clear objective way to the public interest.
2.3 The setting of standards must be independent of government and parliament, and sufficiently independent of media interests, in order to command public respect.

3. Independence and transparency of enforcement and compliance
3.1 Enforcement of ethical standards, by whatever mechanism, must be operationally independent of government and parliament, and sufficiently independent of media interests, in order to command public respect.
3.2 In particular all relevant appointments processes must be sufficiently
independent of government, Parliament and media interests to command public support. 3.3 Compliance must be the responsibility of editors and transparent and demonstrable to the public.

4. Powers and remedies
4.1 The system must provide credible remedies, both in respect of aggrieved individuals and in respect of issues affecting wider groups in society.
4.2 The regulatory regime must have effective investigatory and advisory powers.
4.3 The system should also actively support and promote compliance by the industry, both directly (for example by providing confidential pre-publication advice) and indirectly (for example by kitemarking titles’ own internal systems).
4.4 The system should be a good fit with other relevant regulatory and law enforcement functions.

5. Cost
5.1 The solution must be sufficiently reliably financed to allow for reasonable operational independence and appropriate scope, but without placing a disproportionate burden on either the industry, complainants or the taxpayer.”

2.17 Quite apart from the regulatory solution, Module Four also dealt with other key questions and, to that end, involved evidence from experts in diverse fields ranging from differing approaches to press regulation across the word (and, in particular, the Irish model) to data protection, from ethics and philosophy to plurality. The key questions, reflecting some of these issues, were published on the website22 and, again, interested parties and the public were invited to submit evidence which could be considered during the course of the evidence (even if only to prompt questions from Counsel to the Inquiry). These questions were as follows:

Relevant aspects of the public interest
  1. How would you describe the public interest in a free press?
  2. How would you describe the public interest in freedom of expression? To what extent does that public interest coincide with, or diverge from, the public interest in a free press?
  3. In order to maximise the overall public interest, with what other aspects of the public interest would freedom of expression, or freedom of the press, have to be balanced or limited? The Inquiry is particularly interested in the following, but there may be others:
    1. the interest of the public as a whole in good political governance, for example in areas such as
      • national security, public order and economic wellbeing,
      • the rule of law, the proper independence and accountability of law enforcement agencies, and access to justice, and
      • the democratic accountability of government for the formation and implementation of policy;
    2. the public interest in individual self-determination and the protection and enforcement of private interests, for example
      • privacy, including (but not necessarily limited to) the rights to privacy specified in general in Article 8 of the European Convention on Human Rights and in European and national legislation on the protection of personal data,
      • confidentiality, the protection of reputation, and intellectual and other property rights, and
      • individual freedom of expression and rights to receive and impart information where those interests and rights are not identical to the interests and rights of the press.
  4. What are your views on the extent to which the overall public interest is currently well served, both in principle and in practice, by the current balance between the public interest in the freedom of the press and free expression on the one hand, and competing aspects of the public interest on the other? In your opinion, what changes if any would be desirable in this respect, in order to maximise the overall public interest? If relevant, please state whether those changes should be voluntary or obligatory.
Press ethics
  1. What would be the distinguishing features of the conduct and practices of a media industry, or any organisation which was a part of that industry, which would make it an ‘ethical’ one?
  2. In particular, to whom might the press be considered to owe ethical duties, and why? What might be the content of such duties? To what extent might such duties come into conflict, and how should any such conflicts be resolved? The Inquiry is particularly interested in the following as potentially owed ethical duties, but there may be others:
    1. readers and consumers of the media
    2. persons who are the subject matter of stories and other media products
    3. the wider public
    4. employees, journalists and other producers of the media
    5. shareholders, investors, advertisers and others with an economic interest in the media.
  3. What role might reasonably be expected to be played by a code of conduct in encouraging, inculcating or enforcing ethical behaviour by the press? What would be the distinguishing principles and features of any code of ethical conduct with universal application to the media industry?
  4. To what extent does the media industry’s Code of Practice (http://www.pcc.org. uk/cop/practice.html) meet the needs of an ethical code?
  5. What approach would you recommend to the consideration of improvement to the nature, status, content and enforceability of the current Code? Are there changes to either content or enforceability of the current Code you would wish to see? Please explain your thinking.
  6. What other changes would you consider desirable in order to encourage or constrain the press to improved standards of ethical conduct and practice? Your answer should explain the standards you consider appropriate and why, whether conformity should be encouraged or constrained, and how.”

3. Challenging the evidence

3.1 Litigation in this country is generally conducted by way of adversarial process. In other words, subject to the over-riding control of the court, the parties to the litigation define the issues and the evidence to be adduced, each side disclosing the evidence on which it is intended to rely and calling such witnesses as it feels necessary to prove its case. Witnesses called by one side are cross-examined by the other side or sides, challenging evidence which is disputed and ‘putting’ the case which is to be advanced so that the witness can deal with the allegations made against him or her. The role of the judge or tribunal is to stand in the middle of the exercise, intervening in the evidence to elucidate or seek explanation and then listen to the opposing arguments of the parties both as to the facts and the law, before ultimately deciding the issues at stake. Inquisitorial proceedings (more common in civil law than common law jurisdictions) are led by the judge or tribunal and involve active participation the investigation of the facts. There will still be an important role for the legal representatives of the parties to ensure that their ‘case’ is fully considered.

3.2 The purpose of an Inquiry is not to resolve issues between parties to litigation; there are no parties and there is no litigation in place. On more than one occasion, it has appeared that at least one Core Participant has treated itself as if in adversarial litigation with the Inquiry but that is to misunderstand both the Inquiry and the role of those who participate in it. The role of the Core Participants has been to assist the Inquiry in the elucidation of the facts which form the substratum of the Terms of Reference and then to make submissions on the way forward. The point was made in specific connection to this Inquiry by Lord Justice Moses in the first of the challenges by Elaine Decoulos to my failure to grant her Core Participant status. He said [2011] EWHC 3214 (Admin) at para 5:

“The purpose of the Inquiry is not to vindicate individuals’ sufferings or claims they may have due to mistreatment by the press, but rather for all of us as citizens concerned at the relations between the press, institutions and the public.”

3.3 The role of Core Participants is, therefore, totally different to that of the parties to litigation and very much more constrained than the role that might be adopted even in inquisitorial proceedings which are directed to dealing with individual complaints or claims. Furthermore, the part that is or can be taken by Core Participants (or anyone else) is defined by statute and does not fall within the general discretion of the Inquiry. Thus, Rule 10 of the Inquiry Rules 2006 is in these terms:

  1. Subject to paragraphs (2) to (5), where a witness is giving oral evidence at an inquiry hearing, only counsel to the inquiry ... and the inquiry panel may ask the witness questions.
  2. Where a witness, whether a core participant or otherwise, has been questioned orally in the course of an inquiry hearing pursuant to paragraph (1), the chairman may direct that the recognised legal representative of that witness may ask the witness questions.
  3. Where –
    1. witness other than a core participant has been questioned orally in the course of an inquiry hearing by counsel to the inquiry, or by the inquiry panel; and
    2. that witness’s evidence directly relates to the evidence of another witness, the recognised legal representative of the witness to whom the evidence relates may apply to the chairman for permission to question the witness who has given oral evidence.
  4. The recognised legal representative of a core participant may apply to the chairman for permission to ask questions of a witness giving oral evidence.
  5. When making an application under paragraphs (3) or (4), the recognised legal representative must state –
    1. the issues in respect of which a witness is to be questioned; and
    2. whether the questioning will raise new issues or, if not, why the questioning should be permitted.

3.4 As early as 6 September 2011, I raised this provision and the potential consequences of it, observing that given the pressure on the Inquiry, subject to submissions, I “may well” require issues which Core Participants wished to raise to be discussed with Counsel to the Inquiry in the first instance; he would then be able to conduct such cross-examination as he believed appropriate and, at the same time, restrict other cross-examination.23 That was, in fact, the way in which the Inquiry proceeded but it did so in an even-handed way. By way of example, although Core Participants for affected newspapers suggested questions and lines of enquiry in relation to those who complained that they had been the victims of illegal or unethical press attention (and many of these were pursued by Counsel to the Inquiry when the witnesses gave evidence), I did not permit these witnesses to be cross examined in a manner that could have been appropriate in civil proceedings: I was not prepared to allow them potentially to be victimised again simply because they wished to complain about what had happened to them. Similarly, not only did I prevent cross examination by Core Participants of journalists and others in relation to the subject matter of criminal investigation; subject to specific exceptions and the requirements of fairness enshrined in s17(3) of the Inquiries Act 2005, neither did I generally permit it in relation to other allegations of illegal or unethical conduct.

3.5 That is not to say that the evidence has not been probed: that is the role that Counsel to the Inquiry has undertaken with rigour but always with an eye to the Terms of Reference in general and addressing the culture, practices and ethics of the press in particular. Notwithstanding the general approach, however, some aspects of the evidence have been subject to detailed examination.

Findings of fact

3.6 Although the constraints relating to the examination of witnesses are written into the statute and thus have bound me, I would not want it to be thought that I considered them to be inappropriate or inimical to the interests of justice in this particular Inquiry. Quite the reverse. Had the procedure been otherwise, this Inquiry need never have finished. In relation to the press and the public, the Inquiry has not only looked at the historical position but has traversed over 20 years of journalistic activity. Hundreds of complaints have been made and, although there is no issue about many, a lot more have been the subject of challenge (to greater or lesser effect) and could have given rise to detailed factual investigation. Those few stories that have been investigated in depth inevitably took a great deal of time: had it been necessary for each one, the time taken would have been inordinate.24

3.7 Further, the Inquiry covered far more than the press and the public. The relationship between the press and the police covered the tenure of no fewer than five Commissioners of Police for the Metropolis and crossed all national titles. Other forces, their press offices and local papers were also the subject of evidence. As for the relationship between press and politicians, in the same way that time was devoted to the bid by News Corp for the remaining shares in BSkyB Ltd, so many dominating political stories (from Iraq to the Euro) have been subject to rigorous and detailed analysis. Many have argued that this the Inquiry should have proceeded in this way on the basis that all were or may have been affected or influenced by the way in which they were reported. The same is said for the development of press handling by the Government over the last 20 years. The effect, however, would have been an Inquiry that would have taken many years, by the end of which time the specific concerns which brought about the Inquiry in the first place (and, in particular, the issue of the regulation of the press) would have remained unaddressed, other than in whatever way the press chose themselves to address them in the meantime. That was not the brief that was contained within Part 1 of the Terms of Reference and it is not how I have sought to address them.

3.8 This means that a large number of specific individual incidents have not been the subject of very detailed factual investigation so that, subject to very limited exceptions, I do not feel in a position to make findings of fact as to what did and did not occur; neither, for the purposes of addressing the Terms of Reference is it necessary that I do so. One example, the subject of considerable press comment, will suffice.

3.9 Prior to autumn 2009, The Sun had supported the Labour Party in the three preceding General Elections. During the Labour Party conference, it decided to make public a change in allegiance and thereafter to support the Conservative Party. For present purposes, although relevant to the issue of the impact of proprietors on editorial policy, the circumstances of that decision do not matter. When giving evidence, Rupert Murdoch said that after this decision had been publicised in September 2009, he received a telephone call from the Prime Minister, the Rt Hon Gordon Brown MP, which included the observation by Mr Brown that “your company has declared war on my government and we have no alternative but to make war on your company .”25 Both in his statement and in his evidence, Mr Brown emphatically denied having any conversation with Mr Murdoch, still less making such a remark. When he gave evidence he said: “This conversation never took place. I’m shocked and surprised that it should be suggested, ... There was no such conversation .”26 He provided telephone records from the Downing Street switchboard (through which he says any such telephone call would have been routed) backing up this denial.

3.10 It has been suggested that it is important that I resolve this conflict of evidence and express my view as to where the truth lies. I decline to do so for two very different reasons. The first is very important in the context of the nature of the Inquiry and the manner in which it has had to be approached both as a matter of statute but also, as I have indicated, practicality. It is possible to postulate circumstances in which the question of whether this telephone call took place was central to the resolution of civil litigation between the parties. In that event, considerable investigation would have focussed around the precise date and time of the alleged telephone call; questions would have been addressed to Mr Murdoch as to how he said that the call had been connected; phone records and other documents sought on discovery. Mr Murdoch would have been cross-examined at length by counsel for Mr Brown and vice versa. The question who to believe would have been capable of decision within a far fuller factual matrix. To do so, in particular, without permitting cross-examination seems to me to be unfair to both men.

3.11 I recognise that judges are sometimes required to make difficult factual decisions with very little more than the information available and, if it was critical to do so, I would have had to do the best that I could. That leads me to the second reason. In short, it is neither critical nor, indeed, necessary to decide where the truth of this conversation lies: save in the limited respect of the credibility of Mr Murdoch, it is not relevant to the Terms of Reference at all. On any showing, Mr Brown would hardly have been pleased about the loss of the support for his Government of The Sun;whether and if so how he chose to communicate his view simply takes the Inquiry no further.27

3.12 In part, I have gone into the detail of this particular factual conflict because of the interest and concern that has been expressed about it. Of greater importance as a reason for doing so has been to explain the limitations of the forensic exercise that it has been possible to undertake while addressing the very wide Terms of Reference within the broad timeframe within which I have been asked to report. This Report will not provide all the answers to all the questions that could possibly arise out of the uncountable number of issues that have been raised in evidence. Those who are expecting it to do so will be disappointed.

4. Other material

4.1 The material which can fall to be used by the Inquiry is not, however, limited to the statements that have been put into evidence. It has fallen to me to determine what should be part of that record; I have deliberately adopted as wide a definition of relevance as possible, in order to ensure that as full a picture of the culture, practices and ethics of the press can be put into the public domain by the Inquiry. In that way, the public can itself make a collective decision based on the same material that has been available to me. Thus, both in advance of the Inquiry and while it has been proceeding, different press titles have throughout presented the evidence and the issues (or their perception of each) and commented on the approach, asserting facts and reaching their own conclusions both as to what I have been doing and what I have been thinking. Some titles, conversely, have offered minimal, if any, coverage of the Inquiry for their readers. Free speech requires no less and although I have occasionally raised concerns about factual accuracy,28 I stand fully behind the freedom of the press to comment critically about me, my approach, the evidence and any other aspect of the Inquiry that it sees fit to write about.

4.2 Very quickly, however, it became apparent that the way in which the Inquiry was being reported told its own story about the culture and practices of the press. In the circumstances, in addition to the other evidence that has been read into the record of the Inquiry, I also decided that the product of a press cuttings service dealing with the Inquiry should also be read into the record. At several stages during the course of the hearings, I have made this fact clear.

4.3 The Inquiry has not been alone in commenting on the way in which the press have reported the Inquiry. Private Eye has regularly published commentary on the way in which it has been reported; the campaign (on the website http://hackinginquiry.org/) has done the same. Bloggers have added their own comment and the Inquiry has engaged with Twitter (http:// twitter.com/@levesoninquiry) on which there has been a regular and substantial dialogue about the Inquiry both in this country and abroad. This also is a very powerful example of the proper manifestation of free speech.

5. Submissions

5.1 In addition to leading Counsel to the Inquiry, all those who were Core Participants for Module One made formal opening submissions at its commencement.29 There were submissions at the start of Module Two from Mr Jay, and also on behalf of the Commissioner of Police for the Metropolis and the Metropolitan Police Authority (now the Mayor’s Office for Policing and Crime).30 Module Three was opened only by Mr Jay.31

5.2 In the same way, Counsel to the Inquiry and the Core Participants have assisted me with argument in relation to the rulings to which I have referred above and other issues that have arisen during the course of the hearings. On more than one occasion, it was necessary to deal with disclosure of information that had been shared with Core Participants in advance of its publication: these were highly relevant during the course of the hearings but are now unnecessary further to rehearse.32 Submissions have also been received dealing with issues of evidence, on the approach to Rule 13 of the Inquiry Rules 2006 and in relation to the standard of proof, the last two of which I deal with below. Submissions have generally in writing and supplemented orally; all are also published on the website so that it is possible to see the entirety of the argument put before me as well as the ruling that followed.

5.3 Final submissions on various aspects of the Inquiry have also been received following the conclusion of the various modules. In the main, they have been extremely thorough, very detailed and, as a consequence, extremely lengthy. They have clearly been the product of an enormous amount of work and I am grateful for the effort and very great care that has been put into them. The fact that some arguments and submissions have not been specifically addressed in this Report is not intended as a discourtesy either to the writers or to the arguments. Inevitably, this Report has had to focus on the Terms of Reference, whereas the relevant Core Participants have understandably cast their nets rather wider in order to deal both with the generality and the specifics of some of the issues that have been raised to such extent as they affect them.

5.4 Although it was always anticipated that it could be necessary to re-convene the Inquiry, to obtain updated information in relation to the police investigations and to receive any other important evidence that had emerged following the conclusion of the hearings in July 2012, written and oral closing submissions were invited and presented by most (but not all) of the Core Participants. To such extent as they address the future, they shall be analysed during the course of the consideration of the regulatory regime, although I shall be doing so from the perspective of ‘the press’ as opposed to the extent to which individual titles have behaved in such a way as requires a different approach to regulation. I saw no value in Counsel to the Inquiry making a closing submission and he did not do so.

6. Engagement with the public: the website

6.1 Before turning to the issues of law that have had to be considered as part of the Report writing process, I return to the website because it is appropriate to say something more about the way in which the Inquiry has sought to involve the public in its process and ensure that the evidence which has been given has received the widest audience.

6.2 I have referred to the questions that were posted on the Inquiry website as each module came to be discussed in the evidence. The purpose was to engage with as wide a reach of members of the public as possible and to obtain as wide a range of views as possible. The extent of that response can be judged from Appendix B which sets out a detailed record of the type and number of communications received by the Inquiry through the general mailbox or otherwise. Where it was possible to do so, every communication (a number of which were anonymous) was acknowledged and considered so that a decision could be taken as to whether it was right to take what was said forward in any way. Although I recognise that a number of those who wrote will have been disappointed that they were not given the opportunity to give oral evidence, I explicitly recognise and pay tribute to the very hard work that has been put into ensuring that all the observations have been received have been acted upon appropriately.

6.3 Appendix B also identifies the number of times up to the end of October 2012 that the Inquiry website has been accessed along with its reach. I believe that the Inquiry has done as much as could reasonably have been expected to engage with the public would be surprised if any public inquiry has achieved as much public access. I have no doubt that this has all contributed to the public reaction to events and the further debate as to the way forward.

CHAPTER 3
FURTHER ISSUES OF LAW

1. Rule 13 of the Inquiry Rules 2006: the approach

1.1 Prior to the publication of any Report which includes explicit or significant criticism of any person, the Inquiry Rules 2006 mandate that such a person must be warned of that criticism and given a reasonable opportunity to respond. I set out the background and the legal framework in a ruling on the Application of Rule 131 which I can do no better than repeat:

  1. One of the touchstones of the inquisitorial process prescribed by the 2005 [Inquiries] Act is the requirement of fairness to all. Whereas s. 17(1) of the Act provides that the procedure and conduct of the Inquiry shall be such as I direct, that provision is subject to s. 17(3) in these terms: “In making any decision as to the procedure or conduct of an inquiry, the chairman must act with fairness and with regard to the need to avoid any unnecessary cost (whether to public funds or to witnesses or others).”
  2. No higher manifestation of that duty is apparent than that which deals with the requirement that those who may be criticised in any report have the opportunity afforded to them to deal with the basis of that criticism. The origin is to be found in the Royal Commission on Tribunals of Inquiry (Cmnd 3121, 1966) (“the Salmon Report”) which proposed, among other recommendations, that before a person was called as a witness, he should be informed of any allegations which are made against him and the substance of the evidence in support of them: thus were born Salmon letters although over-rigid adherence has been recognised as ‘unhelpful’: see the observations of Sir Richard Scott VC (in (1995) 111 LQR 596) to the effect that every inquiry must adapt its procedures to meet its own circumstances.
  3. The next manifestation of this requirement (described as ‘fair play in action’ by Sachs LJ in Re Pergamon Press Ltd [1971] Ch 388 at 405) dealt with comment on proposed criticism. Mr Robert Maxwell’s attempt to obtain sight of proposed draft conclusions was rejected in the Court of Appeal when Lawton LJ put the matter in this way: see Maxwell v Department of Trade and Industry [1974] QB 523 at page 541B- D: “Those who conduct inquiries have to base their decisions, findings, conclusions or opinions ... on the evidence. In my judgment they are no more bound to tell a witness likely to be criticised in their report what they have in mind to say about him than has a judge sitting alone who has to decide which of two conflicting witnesses is telling the truth. The judge must ensure that the witness whose credibility is suspected has a fair opportunity of correcting or contradicting the substance of what other witnesses have said or are expected to say which is in conflict with his testimony. Inspectors should do the same but I can see no reason why they should do any more.”
  4. Notwithstanding these judicial observations, the broad process was adopted by Lord Bingham in the BCCI Inquiry, by Sir Richard Scott in the Inquiry into Matrix Churchill and also by Sir John Chilcott in the Iraq Inquiry. This lack of clarity is itself unhelpful and potentially productive either of very substantial delay or satellite litigation (in each case with attendant cost) or both.
  5. The 2005 Act (pursuant to which this Inquiry is being conducted) adopts a different and, in my judgment, self-contained approach to ensure fairness. First, s. 21 of the Act provides that I may by notice require any person to provide evidence in the form of a written statement along with documents. Such notices have identified, in comprehensive terms, the issues with which the statement has been required to deal; where appropriate, it has identified relevant documents or other public statements which should be addressed. It cannot, of course, deal with evidence not then seen by the Inquiry but where issues of significance have arisen before the witness arrives, forewarning has been given and, if necessary, witnesses allowed time to deal with a matter for which they were not prepared. Where the issue has arisen only after the witness has given evidence, again if it is significant, second statements have been requested and obtained; more than one witness has been required to return to give further evidence.
  6. The second (and most extensive) protection is provided by Rules 13-15 of the Inquiry Rules 2006 (‘the 2006 Rules’) which concern what are described as Warning Letters. Thus, Rule 13 provides:
    1. The Chairman may send a warning letter to any person:
      1. he considers maybe, or who has been, subject to criticism in the inquiry proceedings; or
      2. about whom criticism may be inferred from evidence that has been given during the inquiry proceedings; or
      3. who may be subject to criticism in the report, or any interim report.
    2. The recipient of a warning letter may disclose it to his recognised legal representative.
    3. The inquiry panel must not include any explicit or significant criticism of a person in the report, or in any interim report, unless
      1. the chairman has sent that person a warning letter; and
      2. the person has been given a reasonable opportunity to respond to the warning letter.

1.2 In my ruling, I explained the ways in which I have sought to ensure that the Inquiry was conducted fairly and with full regard to the position of all who might be affected. In relation to Rule 13, therefore, I concluded that a warning addressed to a section of the press consisting of the national titles (even if a number of those have not been the subject of criticism or complaint) allowed each to make submissions as to the conclusions that I should draw as to the culture, practices and ethics of the press generally (as opposed to the specific conduct of individual titles although it has been made clear titles have been free to comment on stories which are identifiably referable to them). I went on to conclude not only that generic criticisms should be evidence based, but that the justification for my concerns should be “visible and capable of being understood both by those affected and by the public”.2

1.3 I appreciate (as was argued by Mr Desmond Browne QC for Trinity Mirror plc) that this could allow anyone following the references through to the transcript to identify the titles and, perhaps, the relevant journalists; in reality, however, that would be possible whether or not I identified the references and, on the basis that I have not made specific findings in most individual cases, this approach does not offend the general principle that I am not focussing on the detail of ‘who did what to whom’. It is equally consistent with the principle that my intention not to prejudice criminal proceedings means that I have not identified those alleged to have been involved in mobile phone interception; therefore, in fairness, although there are exceptions when I have considered that the narrative compels specificity, generally speaking, I have exercised similar restraint in respect of those, not being investigated, who may be responsible for similar or other illegal or unethical practices.

1.4 Conscious that any approach to Rule 13 was likely to be contentious, I arranged for the matter to be argued in principle and ruled on the approach generally. This ruling fell within to s38(1) (b) of the Inquiries Act 2005 and had any Core Participant wished to challenge it by way of judicial review, that course was open within 14 days. There was no such challenge and, insofar as generic criticism is concerned, I have followed it.

1.5 I have, however, issued Rule 13 warnings to individuals (and others concerned with the relationship between the press and the public) in those circumstances where I thought fairness warranted it and, in particular, when I was concerned that any conclusion that I might reach in relation to a specific incident could be said to contain an express or implied criticism of them. The touchstone has been to provide an opportunity to make representations about identifiable concerns that I was proposing to express.

1.6 Having said that, it is important that I emphasise that this Report should not be read as addressing the individual conduct of members of the press in their dealings with the public and no implied criticism should be read into the fact that references to particular complaints are inevitably to particular stories written by identifiable journalists (albeit not named in the text of the Report). I cannot repeat too often that this part of the Inquiry is not concerned with individual conduct but with the culture, practices and ethics of the press (or a section of the press) as a whole. Who would be to blame for a particular egregious story? Would it be a proprietor or editor who ordained a particular approach or a particular agenda? Would it be the journalist who felt driven to do what had been bidden irrespective of personal qualms? Would it be the sub-editor who wrote a headline that misrepresented what should be derived from correctly identified facts or modified the words of caution that the journalist had carefully included? How could I decide between these cumulative or alternative possibilities? In the circumstances, I have only been able to take the story at face value along with the reaction of the subject of the story and my view of the law (for example in relation to privacy) and the Editors’ Code of Practice.

1.7 The result of this analysis is that, in relation to most of the complaints made by those who have been subject to press intrusion I have not issued Rule 13 letters. This is because I do not intend either expressly or by implication to make explicit or significant criticism of the relevant journalists (rather than, generically, of the press). If I had done otherwise, hundreds of journalists (if not more), most of whom have neither been asked nor volunteered to give evidence to the Inquiry or even to make a statement, would have had to receive a warning. Having said that, if, in any particular case or in relation to any particular example that I wish to highlight, I have been in doubt, I have issued a warning and provided an opportunity for representations to be made. In reaching my conclusions, I have taken full account of the representations that I have received in response to all these warnings including those issued generically to the press.

1.8 In relation to Module Two and the police, different considerations apply on the basis that there being no ongoing criminal investigation into the conduct of the MPS (although there are inquiries into other aspects of police conduct in relation to the press).3 On the other hand, I received detailed submissions from Counsel for the MPS both generally and specifically as to the interaction of Parts 1 and 2 of the Inquiry. In the circumstances, I separately ruled in relation to the application of Rule 13 both to the MPS and to individual police officers.4 Again, I have followed it and issued Rule 13 letters both general and specific in nature, taking full account of the representations that I have received.

1.9 Module Three raised different issues for a number of reasons. First, there is no criminal investigation that could affect my approach and, in addition, it does not appear that there will be any other consideration of the general issues which I have to address in the Terms of Reference; that might be thought to be a basis for encouraging me to range further and wider than in relation to the other modules. On the other hand, the Terms of Reference are specific to the culture, practices and ethics of the press ‘including contacts and the relationships between national newspapers and politicians, and the conduct of each’. It is argued that the Inquiry should investigate the nature of friendships between individual members of the press and individual politicians but, save to the extent that these bite or may bite upon the way in which a journalist (or politician) attend to his or her professional duties, it does not appear to me that it is necessary or appropriate for me to enquire. Throughout the hearing of Module Three, I emphasised that politicians were entitled to be friendly with whosoever they wished; absent some impact on the public interest, it is no part of the work of the Inquiry to challenge that right.

1.10 Second, each of the major UK political parties has recognised, in general terms, that the relationship between politicians and the press has become too close: indeed, that was the conclusion expressed by the Prime Minister and his three predecessors when they gave evidence. For me to express that conclusion, however, undeniably constitutes an ‘explicit or significant criticism’ in respect of which I must issue a Rule 13 letter. Such a criticism, however, is not intended to be personal but generic. It recognises that how close is too close is itself a very difficult and nuanced issue, given that it is critically important, in a democratic society, that politicians engage with the press and seek to explain their policies to the public through the press.

1.11 The third concern has been the extent to which the work of the Inquiry has involved contemporary political issues with the risk of entering into a party political debate which is no part of its function: this particularly relates to the attempted acquisition News Corp of the publicly owned shares in BSkyB Ltd. I made it clear that I would not opine on the Ministerial Code or seek to prevent Parliament from investigating whatever aspect of the bid it wished to investigate;5 however, I recognise that it constitutes the most recent and most well documented inter-reaction between a very powerful media organisation and politicians (although the interaction in relation to the legislative proposals now contained in s77-78 of the Criminal Justice and Immigration Act 2008 which has not yet been implemented are also important). I have, therefore, attempted to analyse these issues from a general, cultural perspective: the process has inevitably involved a consideration of individual decisions and, on the basis that, even if not explicit, implied significant criticism may be inferred, I have issued appropriate warnings accordingly.

1.12 I can deal with Module Four quite shortly. In this Report, each of the ideas put before the Inquiry has been subject to rigorous analysis and none more so than the proposals advanced by Lord Black of Brentwood (on behalf of the Press Board of Finance) and advocated by, among others, Lord Hunt of Wirral, the Chairman of the Press Complaints Commission. It is right that they should be, not least because, from the outset of the Inquiry and throughout, I encouraged the press to put forward their own ideas for press regulation, bearing in mind not only the values which it held to be important but also the interests of the public as demonstrated not only by the demand for this Inquiry but also by the evidence which has been given to it.

1.13 I appreciate that Lord Black has had to deal with a wide spread of press interest; I have no doubt that different constituents have put forward different priorities and different ideas and that, furthermore, Lord Black has done his best to bring everyone to a common consensus which I expect is also consistent with his own ideas. Any concern or criticism that I have of the final formulation, however, is not a criticism of him or, indeed, any other person whether individual or corporate: neither should it be seen as such. In those circumstances, I have not felt it appropriate or necessary to give advance warning of my concerns but have simply set them out in the body of the Report.

2. Rule 13 of the Inquiry Rules 2006: the practice

2.1 The reason for the existence of Rule 13 of the Inquiry Rules is clear from this analysis. Flowing from that, however, are two further consequences. The first is the fact that a notice is only necessary to address potential criticism: it is not intended to present a balanced picture of any sort. Nobody needs to be warned of the risk that their conduct might be applauded. The point was clear from the body of the letter which explained:

“By definition, this letter is focussed on the aspects of the culture, practices and ethics of the press which may attract criticism and it is not the function of this letter to refer to the evidence of good culture, practice and ethics which the Inquiry has received.”

2.2 The second consequence flows from the first. A possible criticism should not be interpreted as one that will inevitably be made. As a result, the letter also made it clear that both it and any response were subject to “a legal duty of confidence” owed in the public interest under Rule 14(1)(b) of the Inquiry Rules 2006.6 This requirement (expressly mandated in the Rules) is specifically designed to discourage public discussion or debate about criticisms which have not yet been made and which could well, in the end, be less serious. It was and is, therefore, a demonstrable attempt to be fair and to provide an opportunity to those who might be affected to make submissions about possible criticism at a time when, as I made clear, I was continuing to reflect on the narrative and conclusions which I would reach and before I had done so.

2.3 Thus, although it has been portrayed as such, the letter is not intended to be a secret: it is only confidential until the Report is signed or published,7 after which time anyone is free to discuss the letters, criticise their content and analyse the extent to which my views might have changed. My concluded view, as expressed in the Report, will then be available.

2.4 It is therefore not in the least surprising that the letters are “one-sided,” that the positive should not be subject to a similar letter, or that I would be concerned if the contents were being openly discussed in the press.8 All are, of course, entitled to express whatever view they wish about the summary of press practice that can be culled from the evidence but it is worth repeating (not for the first, or the last, time) that the criticisms that I have suggested were not directed at the entirety of the press: most journalists, most if not all the time, do not behave in the way that, on my assessment of the evidence, a small but not insignificant number have behaved, thereby generating criticism of the culture that permitted this to happen, the practices involved and the ethics of those who have behaved in that way. As in every other walk of life, regulation is required for the small minority.

2.5 A number of recipients of Rule 13 letters have questioned the fairness of the process on various grounds, and I should record that I have considered these objections and submissions with great care, always in the context of my ultimate obligation under section 17 of the Inquiries Act to act fairly. I am completely satisfied that all recipients who have chosen to submit substantive responses have understood the issues in respect of which I have sought further assistance, and have addressed them in appropriate detail. In the few instances where it appeared that recipients might have misunderstood the point that I wished them to have the opportunity to address, I have provided further explanation and given them that opportunity. In the result, many of my provisional conclusions have been revised or reformulated to reflect the Rule 13 process and the representations that I have received.

3. The nature and standard of proof

3.1 The starting point for any consideration of the nature of what must be proved and the standard of proof is, from the outset, to recognise that the Inquiry has been set up specifically because “particular events have caused ... public concern”.9 To some extent, it is sufficient simply to refer back to the Terms of Reference of Part 1 of the Inquiry but, summarising at least the most important of these events, it would be appropriate to include as topics about which I have been required to inquire:

  1. the disclosure of the interception of Milly Dowler’s mobile phone messages and the deletion of such messages;
  2. the fact that it was common ground that the News of the World had engaged in interception of mobile phone messages (revealed in civil litigation and otherwise) contrary to the continued assertion that Clive Goodman was one “rogue reporter”;
  3. other complaints of illegal or unethical methods by which journalists obtained stories (not the least significant being activity in breach of Data Protection legislation leading to a concern about the policy, operation and effectiveness of the regulatory regime for data protection);
  4. the harassment and pressure placed both on members of the public caught up in stories attracting enormous press coverage and those in the public eye whether because of their celebrity or otherwise;
  5. the failure of the Press Complaints Commission to address the activities of the News of the World (save only to exonerate them and criticise The Guardian for its reporting); to provide adequate regulatory oversight in relation to the press; to provide adequate redress for those complaining of press misconduct save in limited circumstances; and to ensure that its remit embraced the press as a whole;
  6. the nature of the relationship between the press and the police and, in particular, the extent to which failure of the police properly to investigate the extent of interception of mobile phone messages was a consequence of that relationship;
  7. the way in which politicians engaged with the press and, in particular, the extent to which the commercial interests of the press influenced the development or implementation of policy, along with the failure to address prior concerns over many years relating to media misconduct; and
  8. the impact of the plurality of the media and cross media ownership on the public interest.

3.2 More important than the topics about which I am required to inquire are the subjects about which I am required to make recommendations. It is sufficient to repeat the Terms of Reference which are expressed in this way:

“To make recommendations:
  1. for a new more effective policy and regulatory regime which supports the integrity and freedom of the press, the plurality of the media, and its independence, including from Government, while encouraging the highest ethical and professional standards;
  2. for how future concerns about press behaviour, media policy, regulation and cross-media ownership should be dealt with by all the relevant authorities, including Parliament, Government, the prosecuting authorities and the police;
  3. the future conduct of relations between politicians and the press; and
  4. the future conduct of relations between the police and the press.”

3.3 These issues are to be contrasted with those set out in Part 2 of the Terms of Reference, which are specifically directed to a far more fact focussed investigation of the conduct of News International and other newspaper organisations (“the extent of unlawful or improper conduct”, “the extent of corporate governance and management failures”), along with the police (“the extent to which the police received corrupt payments or other inducements, or were otherwise complicit in such misconduct or in suppressing its proper investigation”) and politicians (“the role, if any, of politicians, public servants and others in relation to any failure to investigate wrongdoing at News International”). In Part 2, there is a requirement “to consider the implications” of what is then found to have happened. In other words, Part 1 of this Inquiry is a qualitative exercise of sufficient breadth to determine the appropriate recommendations to make for the future. Part 2 is a quantitative exercise: how extensive have been the identified failures in News International, other press organisations, the police, the political class, public servants or others? On that basis, the implications (and any additional recommendations fall to be addressed. Part 2 requires a far greater and more detailed factual investigation than has Part 1: this is not surprising given that the Terms of Reference were split into two because of the ongoing police investigation and the lack of clarity as to where it might lead).

3.4 Against that background it is necessary to consider the overriding obligation as to the procedure or conduct of the Inquiry, which requires me “to act with fairness and with regard to the need to avoid any unnecessary cost”.10 Further, although the Inquiry may “not rule on and has no power to determine, any person’s civil or criminal liability”, it is not inhibited in the discharge of its function “by any likelihood of liability being inferred from the facts that it determines or recommendations that it makes”.11 Subject to this framework, the obligation is set out in s24(1) of the Inquiries Act 2005 in these terms:

“The Chairman of an inquiry must deliver a report to the Minister setting out –
  1. the facts determined by the inquiry panel;
  2. the recommendations of the panel ... The report may also contain anything else that the panel considers to be relevant to the terms of reference (including any recommendations the panel sees fit to make despite not being required to do so by the terms of reference)”
.

3.5 The facts as determined, however, are those which are necessary in order to provide the context for the recommendations. Focussing on the relationship between the press and the public, therefore, the submission that a single or occasional instance of misconduct will not itself justify any adverse finding about the culture, practices or ethics of the press is to proceed on the mistaken basis of thinking quantitatively rather than qualitatively. In relation to the future of regulation, the question whether a new regime is appropriate must be asked by reference to how the present regulatory regime has dealt with such issues as have arisen and whether it retains public confidence. If problems with or concerns about the culture, practices and ethics of the press are – represented by a single or occasional example – it may not be appropriate or necessary to recommend any change. Nobody, however, has submitted that this is the case. It is not challenged that there is legitimate public concern about the regulatory regime which it is no longer suggested is fit for purpose; the issue is the extent of that problem and the benefits and detriments of possible solutions.

3.6 Neither does it matter that any problem is limited to one or a small number of titles. A regulatory regime must deal with all titles and be in a position appropriately to deal with even a single recalcitrant paper; it is irrelevant if one or more title never attracts its adverse attention. To that extent, the approach of at least one newspaper group to the Inquiry, restricting itself to demonstrating how illegal or unethical activity cannot be placed at its door, has wholly missed the point. I have no intention of either applauding one paper for its culture, practices and ethics or (with the exception of the NoTW) of condemning another. The reason for the exception is so that the public do not ascribe to other titles the many criticisms that have been articulated about that one. What I sought from all Core Participants (but have not always received) was an analysis of the extent to which, as a matter of generality, there was a problem with the culture, practices and ethics of the press or a section of the press, so that it would be possible to consider a new and sufficiently robust policy and regulatory regime which supports the integrity and freedom of the press but also reflects the legitimate rights of others.

3.7 In argument, it has been submitted that it is appropriate for the Inquiry to express its findings at a high level of generality. The point is made in this way. It does not matter whether, for example, phone hacking occurred only at one title or was more widespread since it is an established problem of conduct by at least part of the press which will inform the recommendations made. Similarly, the problem of intrusion on grief identified by certain witnesses is a problem of conduct by at least part of the press and it matters not for the purpose of making recommendations whether it occurred only at one title, at several titles, or at all titles. From this perspective the Inquiry can find that there are ‘concerns’ about alleged press misconduct without determining whether the particular type of misconduct occurred on one occasion or one hundred, at one title or many. This puts the qualitative versus the quantitative argument at its highest.

3.8 To a point, the argument is well made and correct. I have already concluded, however, that a single or occasional instance of misconduct may not be sufficient to justify an adverse finding about culture, practices and ethics on the basis that it is of no real significance. Neither am I prepared to proceed on the basis that the argument of ‘one rogue reporter’ can be replaced, by the remainder of the press, with an argument of ‘one rogue newspaper title’: if that is what I consider the position to be, I shall so conclude. That does not require me to decide how extensive was the practice or knowledge of phone hacking (although keeping quiet about a known abuse of the law by another title itself says something about culture, practices and ethics, on the basis that who otherwise will hold the press to account) but, in any event, illegality and unethical behaviour comes in many different forms and it is the overall picture that is critical.

3.9 That is not to say that I will not deal with individual cases because worked examples can exemplify the problems that exist even in titles that are not the subject of repeated complaint and these may add to the overall picture. As a consequence, it is important to underline that it is not an inevitable inference that the culture, practices and ethics of the title affected is driven by the problem that I am exemplifying. Each generality along with each example is intended to provide or add to the narrative of facts against which to judge the regulatory regime and consider what should now take its place.

3.10 Against that background, a consideration of the standard of proof becomes much more straightforward. I accept that the public interest requires that the findings of the Inquiry are expressed in such a way that can readily be understood to be a judgment on what has occurred and why any recommendations have been made and, furthermore, that the appropriate standard is that applicable in all but criminal cases, namely the balance of probability. To put it more colloquially, before reaching a conclusion, for example, that an event has happened, I must conclude that its occurrence is more likely than not. I further recognise both from an analysis of Re H (Minors) (Sexual Abuse: Standard of Proof)12 and the subsequent decisions of R(N) v Mental Health Review Tribunal (Northern Region)13 and Re D14 that the application of the balance of probabilities is flexible in its application in that the more serious the allegation, the more careful the analysis of the facts will have to be not least because of the reduced likelihood of it being true.15

3.11 In my ruling in relation to the application of Rule 13 of the Inquiry Rules 2006, I raised the question whether it was sufficient that I consider whether the evidence reveals such a concern about particular conduct that regulatory arrangements should be put in place to deal with that type of behaviour should it arise.16 I there had regard to the Baha Mousa Inquiry conducted by The Rt Hon Sir William Gage who, referring to s24(1) of the Inquiries Act 2005 (to the effect that the report could contain “anything else the panel considers relevant to the terms of reference”), concluded that it was open to him to express suspicion that an allegation is true. He recognised that such a comment would not be a finding of fact and that the power so to conclude “should be exercised sparingly”.17

3.12 I accept that unresolved suspicions, on their own, do not provide a sufficient basis for conclusions, in particular as to the success or otherwise of the present regulatory regime but the words ‘on their own’ are important. By way of example, I can conclude without difficulty that mobile phone interception was far more extensive at the NoTW than was initially admitted and I can also be satisfied that knowledge of the technique was far more widespread than the confines of the NoTW but, until the Guardian article in 2009, it was not addressed by the press or the PCC.

3.13 That alone is likely to be sufficient to justify a new approach to regulation but it seems to me that I can (and should) be able to go much further. A considerable body of evidence has been adduced which gives rise to reasonable grounds for believing that knowledge of the practice was linked to its use, albeit there is not the hard evidence (such as comes from the Mulcaire material) of names, telephone numbers and the like. It seems to me that it could be possible to conclude, inferentially, on the balance of probability, that others were involved in the practice; it might be fairer, however, (and sufficient to add to the weight of any conclusion about the need for a new approach to regulation) simply to conclude that there are strong reasonable grounds for believing that it did. I recognise, however, the need for real caution before proceeding along these lines.

3.14 Mr Jonathan Caplan QC for Associated Newspapers Ltd argues that any general statement that there are grounds to suspect senior executives within a section of the national press of knowledge, concealment or acquiescence in voicemail interception raised very serious reputational issues for those senior personnel reasonably considered by the public to be within that section of the press (that is to say the tabloid or popular press). It is argued that such conclusions should not be reached unless the evidence discloses objectively reasonable grounds to suspect those executives which it cannot because there has been no proper investigation of the issue.

3.15 I have not singled out ‘senior executives’ for special mention but it is important to make the point that this should not and does not mean that, in appropriate cases, individual titles (and individual executives or journalists) will not be identified or identifiable. The effect of the argument that to do so offends my general approach is that I would not be able to reach any conclusion because to criticise any individual title or group is to criticise the editor. This is no more than a repetition of the argument that I rejected in the ruling on Rule 13 concerning the implied criticism of those involved18 which was not thereafter challenged. I am certainly prepared to accept, however, that I should not criticise any individual by name unless satisfied on the balance of probability that such criticism is justified.

3.16 Similar, but not identical, reasoning applies to my approach to the relations between the press and the police (Module Two) and the press and politicians (Module Three) and I will express my conclusions about the nature and impact of those relationships on the balance of probability. In both of these cases, there is no complication of pending criminal investigation which could limit my ability to focus on individual conduct.

3.17 In connection both with the police and with politicians, the material before the Inquiry is sufficient to reach conclusions on the important questions without having to consider issues of reasonable suspicion but the complication in these relationships arises in connection with the additional question of perception. Thus, by way of example, it has been suggested that ‘deals’ were struck between the press and politicians to the mutual advantage of both. That allegation has been strenuously denied both by the press and by politicians. Quite apart from that, however, there is the very different issue of whether, even assuming there was no such ‘deal’, the behaviour of both gave rise to legitimate perception in the public that the relationship was being conducted in a way that was not in the public interest. On that basis, it may be entirely wrong to suggest or conclude that there was impropriety of any sort but still correct to decide that the way in which the relationship is handled from the perspective both of the press and politicians requires adjustment so that each can perform their duty but in a way that does not give rise an adverse perception. A similar problem arises in connection with the relationships between the press and the police (in particular in relation to the refusal to re-open investigations into mobile phone interception).

CHAPTER 4
THE REPORT

1. Scope

1.1 The Inquiry is UK-wide in its scope. It was setup, and its Terms of Reference were finalised, with the support of the Devolved Governments of the UK in Scotland, Northern Ireland and Wales. In so far as my recommendations address matters within areas of devolved competence, it will of course be for the devolved administrations and legislatures to consider them in the usual way. I have not, however, sought to any extent at all in this Report to analyse the position separately from the perspective of the devolved jurisdictions, nor to acknowledge, where legal matters are considered, the points on which different law applies in different parts of the UK. My timetable did not allow for that; it would have been a very complex and time- consuming exercise. I recognise in the result that my Report may be less helpful to those with decision-making responsibilities in Scotland, Northern Ireland and Wales, but I have sought to set out my analysis and conclusions in a sufficiently explicit and reasoned way to enable the experts within the devolved jurisdictions to see as readily as possible how they could be made to fit. I have not been made aware of any technical reason why my recommendations should not be able to be accommodated, with appropriate adjustment, in all parts of the UK, but I have not sought detailed advice on the matter. I intend no discourtesy at all by this approach and hope that those with the relevant decision-making responsibilities will understand the reasons.

2. Purpose

2.1 This Report fulfils three quite separate functions. First, it is an account of the Inquiry. The purpose of the Inquiry was to inquire into the culture practices and ethics of the press and to make recommendations. By conducting the Inquiry in public and in such a way that it can be followed by anyone with an interest to do so, the story has emerged but it is important that it is collected together in one place and I have attempted to do that as a balanced account of what has transpired. Further, that balance can be checked. Anyone is able to go onto the Inquiry website, watch the play-back of the evidence, read every statement of witnesses whether called or simply introduced into the record, examine every relevant document in the form made part of that record whether specifically referred to not and consider every submission from a Core Participant or Counsel to the Inquiry and so form his or her own conclusion about the balance of the Report.

2.2 Collecting the material and presenting it in an ordered form has generated an additional issue. It will quickly be obvious that some stories appear in more than one place in the narrative and some not at all. That is not because different examples of types of conduct are not available from either the material called at the Inquiry or read into the record; neither is it because of my over-reliance on a particular witness and the story that he or she had to recount. It is important to appreciate, however, that in some instances, manifestations of different criticisms come together in the same story, aggravating the wrong committed. It is equally valuable, however, to understand the same story from the perspective of the victim, simply trying to deal with life events as they occur (with the press providing its own, sometimes monumental, challenges) or, in some cases, over a lengthy period of time, again and again having to confront different attacks from the same or different quarters. To tell every story was simply impractical but to say (as is frequently asserted) that the Inquiry has been ‘hijacked’ by celebrities is both wrong and unfair; the claim may be thought to be an attempt to divert attention away from the real harm caused to real people.

2.3 The second purpose of the Report is to set out my conclusions on the culture, practices and ethics of the press and the other areas of my Terms of Reference. It is also to identify and explain my recommendations as to the way forward: that, after all, is precisely what the Terms of Reference require me to do. Both conclusions and recommendations appear throughout the Report but are, I hope, reasoned and comprehensible.

2.4 The third purpose of the Report is, in my view, the most important. It is to allow those who read it to reach their own conclusions about every aspect of the Terms of Reference. From the outset (and consistently the subject of commentary throughout the hearings and subsequently), it has been suggested that a judge is wholly unsuited to the task of seeking to discern, let alone determine, how a free press should operate and how it should exercise its rights of free speech. It has been said that I have had an agenda and that the failure to involve a journalist with tabloid or mid-market experience as an assessor demonstrates a failure to understand the popular culture of journalism and an attempt to impose a broadsheet agenda when the profitable newspapers are the former not the latter. It is argued that the Terms of Reference are either too broad or too narrow. It is open to all to reach their own conclusions.

2.5 I have no doubt that all sections of the press will report and comment upon this Report, each newspaper or title from its own perspective. It will be for anyone who reads the Report to decide the extent to which any comment upon it is fair in the same way that it will be for the Government (maintaining, I hope, the cross party consensus with which this Inquiry was set up) to decide how far it wishes to take the recommendations that I have made. That is where the ultimate decision making properly lies.

3. Timing and content

3.1 It is also necessary to say something about the timetable. Although the Prime Minister initially hoped that the Report would be available within 12 months, two developments affected the prospect of such a time frame being met. The first was the extension, beyond that initially envisaged, of the Terms of Reference. More significant, however, was the appreciation that there was no body of evidence immediately available to provide the basis from which to commence the calling of witnesses; the police investigation was ongoing and therefore it was not appropriate to seek to use the evidence that had been collected during that inquiry. Thus, it was only possible to start the collection of evidence in August 2011 and, given the holiday period, it was inevitable that it would take some time to be prepared; only after it had been prepared and served could it be assimilated and the hearings commenced.

3.2 In the event, the oral hearings commenced on 14 November 2011 and, had it been essential to deliver a Report by the end of July 2012, they would have had to have been concluded by April. Given the remit involving the press, the public, the police and politicians, this was simply not feasible. I therefore set different targets namely that the evidence should conclude within about 12 months of the appointment of the Inquiry and the Report should be available within about 12 months of the commencement of the evidence. I did so because I recognised the fundamental importance of early delivery of a Report so that decisions could be made and implemented as to the future within a reasonable timetable, rather than being pushed back thereby falling in the run up to a general election.

3.3 Meeting the timetable has not been without consequences. In relation to the evidence, careful selection was made of those witnesses who would be called to give evidence on oath and representations were invited from Core Participants in relation to other potential witnesses whose statements, in the absence of objection, could be read into the record without their personal attendance. Understanding the approach of the Inquiry to the evidence generally, sensible decisions were made by the Core Participants whose assistance, throughout, has been of very great value. The consequence, as I have explained, is that a vast body of evidence was not in fact the subject of oral exposition and the timetable for the hearings was met. There are, however, no different classes of evidence: although some of the material provided in writing is not referred to, it has all been considered.

3.4 As for the Report, the consequences are different. In an ideal world, I would have wished to write, re-write and hone this Report so that every nuance could be the subject of mature reflection. As previous inquiries have shown, given the amount of evidence whether oral, documentary or read-in, that would have been a task of very many months duration. This Report, therefore, is the work of many hands,1 all working to my direction and reflecting my views; that is the inevitable consequence of the way in which the work has had to be done. I place on record my appreciation to all those who have collated the evidence in relation to different aspects of the Report. Having said that, I repeat that every finding of fact, every conclusion and every recommendation expressed in this Report is mine alone. Equally, any errors are my responsibility.

CHAPTER 1
INTRODUCTION

1.1 This Part of the Report alludes to some of the fundamental principles which must provide the context for any consideration of the role of the press in the United Kingdom. It does so principally for the purpose of brief overview and explanation, and to set the scene for the narrative, analysis and recommendations which follow.

1.2 The principles which are set out are not simply derived from philosophical or jurisprudential writings. Proprietors, editors and journalists wrote and spoke about the importance of what they do for all of us in the UK, and the value it has for our common life. Politicians described the principles informing their own relationship with the media, including as policy-makers. Commentators suggested the matters that the Inquiry should bear particularly in mind in approaching its task. This brief overview seeks to distil, without necessarily fully rehearsing, the essence of the points of principle which were put before the Inquiry.

1.3 Without seeking, or needing, to do full justice to the fine nuances of opinion which it is possible to hold and debate about such matters, this Part of the Report aims simply to set out a framework of understanding which is relatively uncontroversial. It is therefore the intention simply to underline, to put beyond doubt, the extent to which the Inquiry has itself proceeded on the basis of the perspectives set out, and to do so in terms with which I believe that most of the public would be able broadly to agree.

1.4 It is also the intention of this Part of the Report to clarify some of the strands of thought which have been woven through a great deal of the evidence the Inquiry has received. Concepts such as the freedom of the press, freedom of expression and the public interest have been much referred to in the course of the evidence. These are potent expressions, and powerful and important concepts; commensurate clarity and care is needed in their deployment in the context of a Report on the culture, practices and ethics of the press. They are concepts which are capable of being, and have been, used both rhetorically and analytically to explain and support a range of different perspectives, arguments and conclusions.

1.5 Attempting an all-embracing definition of concepts of this sort, even within the limitations of the Inquiry’s Terms of Reference, is neither necessary nor appropriate. Some measure of clarification is nevertheless attempted, both to underline the importance of these concepts and also to indicate the traps they can sometimes set for the unwary. This is not intended to make any claims to an especial authority in doing so, but only to give some indication of why they are important, and the limits of the uses and justifications to which they can be put. These are precious and fundamental principles, to which great respect must be paid; at the same time, they must be handled thoughtfully and with care.

1.6 The Inquiry was considerably assisted in this respect not only by the way that the issue has been put by so many journalists but, in particular by the expert witness evidence it received, in both written and oral form.1 I recognise that I have freely borrowed from their observations in some of what follows and I am grateful to them. In doing so and while acknowledging this debt, I should make clear, that the analysis set out here is entirely that of the Inquiry and is not to be taken to be representative of the entirety of the views of the expert witnesses, collectively or individually. As with other aspects of the evidence that I have sought to summarise, I can only commend those interested to the original evidence: any summary cannot attempt to do full justice to it.

CHAPTER 2
THE FREEDOM OF THE PRESS AND DEMOCRACY

1. Context

“A free press is the unsleeping guardian of every other right that free men prize; it is the most dangerous foe of tyranny … Under dictatorship the press is bound to languish … But where free institutions are indigenous to the soil and men have the habit of liberty, the press will continue to be the Fourth Estate, the vigilant guardian of the rights of the ordinary citizen.”1

Winston Churchill

“The proper functioning of a modern participatory democracy requires that the media be free, active, professional and inquiring. For this reason the courts here and elsewhere, have recognised the cardinal importance of press freedom and the need for any restriction on that freedom to be proportionate and no more than necessary to promote the legitimate object of the restriction.”2

Lord Bingham

1.1 The importance of a free press to democracy is surely incontrovertible, and, as Lord Bingham’s statement makes clear, enshrined in law and constitution in the UK. Why it is so may be thought obvious, but bears some consideration. The quality of that freedom also requires consideration; again, as Lord Bingham indicates, freedom has many components and is rarely in a democracy absolute or paramount, if only because democracy may itself be thought of as a system for reconciling competing freedoms. Equally, a press that is free and nothing else will not necessarily enhance democracy. Other conditions are necessary too; Lord Bingham’s formulation that the press must also be ‘active, professional and inquiring, and Churchill’s vision of the press as ‘vigilant guardians of the rights of the ordinary citizen’ raise interesting questions about how freedoms can be used.

1.2 My attention has been drawn by press Core Participants to statements of the highest judicial authority which develop these points in a variety of ways.

1.3 In R v Secretary of State for the Home Department, ex parte Simms (2000) 2 A.C. 115, a case which held that any restriction on the interviewing of prisoners by journalists must be strictly justified, Lord Steyn explained at paragraph 126:

‘Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self-fulfilment of individuals in society. Secondly, in the famous words of Holmes J (echoing John Stuart Mill), ‘the best of truth is the power of thought to get itself accepted in the competition of the market’: Abrams v US (1919) 250 U.S. 616, 630, per Holmes J (dissenting). Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country: see Stone, Seidman, Sunstein and Tushnet, Constitutional Law, 3rd ed. (1996), pp. 1078-1086. It is this last interest which is engaged in the present case. The applicants argue that in their cases the criminal justice system has failed, and that they have been wrongly convicted. They seek with the assistance of journalists, who have the resources to do the necessary investigations, to make public the wrongs which they allegedly suffered.’

1.4 The point was developed in the speech of Lord Nicholls of Birkenhead in Reynolds v Times Newspapers Ltd (2001) 1 A.C. 127, at paragraph 200:

‘The high importance of freedom to impart and receive information and ideas has been stated so often and so eloquently that the point calls for no elaboration in this case. At a pragmatic level, freedom to disseminate and receive information on political matters is essential to the system of parliamentary democracy cherished in this country. This freedom enables those who elect representatives to Parliament to make an informed choice, regarding individuals as well as policies, and those elected to make informed decisions...Likewise, there is no need to elaborate on the importance of the role discharged by the media in the expression and communication of information and comment on political matters. Without freedom of expression by the media, freedom of expression would be a hollow concept.’

1.5 The same point has been made with equal force in the European Court of Human Rights in Strasbourg. In Castells v Spain (1992) 14 EHHR 445 a senator of an opposition political party in Spain published an article in a weekly magazine critical of the government, and was charged and convicted of insulting the government and disqualified from holding political office. During the trial, Senor Castells attempted to adduce evidence as to the truth of the article, but it was declared inadmissible by the Spanish Supreme Court. The Strasbourg Court held that his conviction constituted an unjustified interference with his right to freedom of expression under Article 10 of the ECHR. At paragraph 43 the Court observed:

‘...the pre-eminent role of the press in a State governed by the rule of law must not be forgotten.
Although it must not overstep various bounds set, inter alia, for the prevention of disorder and the protection of the reputation of others, it is nevertheless incumbent on it to impart information and ideas on political questions and on other matters of public interest...
Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders. In particular, it gives politicians the opportunity to reflect and comment on the preoccupations of public opinion; it thus enables everyone to participate in the free political debate which is at the very core of a democratic society.’

1.6 The fundamental importance of the freedom of the press was a very familiar theme of the evidence received by the Inquiry, and rightly so. It is one I emphasised myself on several occasions. The description of the importance of press freedom was put to the Inquiry largely in two forms: first, as a negative or ‘default’ argument (any interference with any sort of freedom must always be justified in a liberal democracy) and, second, as a positive argument (the press must be free to fulfil its important role). To the extent that either or both of these arguments was deployed in the service of contentions about the right approach for the Inquiry to take to its Terms of Reference, and explicitly to the question of how far it might end by asking new things of the press in respect of its culture, practices and ethics, it is necessary to stand back and reflect on the origins and explanations for the importance of press freedom.

2. A brief history of press freedom in the United Kingdom

2.1 The history of the press is filled with struggles against the state and debates over the rights and privileges of the press. It thus provides an essential background to understanding the commitment of modern democratic society to freedom of the press. It also explains the strength of feeling demonstrated by so many journalist witnesses.

2.2 From the advent of the printing press in 1476 until the end of the seventeenth century, state licensing meant that the Government and the Church could control the press, and in particular prevent the printing of seditious or heretical works. State control over printing tightened when, in 1538, Henry VIII decreed that all new printed books had to be approved by the Privy Council and registered with the Stationers’ Company. This system of state control endured under a series of decrees issued and enforced by the Star Chamber.

2.3 The licensing regime ended with the abolition of the Star Chamber in 1640. However, in 1643 licensing was reintroduced by Cromwell’s Parliament in an effort to suppress the publication of material about Charles I. This act moved John Milton to write his now immortal defence of the free press in The Areopagitica, a Speech for the Liberty of Unlicensed Printing:

“The attempt to keep out evil doctrine by licensing is like the exploit of that gallant man who thought to keep out the crows by shutting his park gate … Lords and Commons of England, consider what nation it is whereof ye are: a nation not slow and dull, but of a quick, ingenious and piercing spirit. It must not be shackled or restricted. Give me the liberty to know and to utter and to argue freely according to conscience, above all liberties.”

2.4 Milton’s plea went unheeded and for the next half century the press was governed under a licensing system which suppressed all but official publications. Licensing eventually ended in 1695 when the House of Commons refused to renew the licensing legislation. Ever since the licensing of the press was abolished, there has existed a general right to publish newspapers, books or magazines without state authorisation.

2.5 Although no longer required to obtain a licence for the mere act of publishing, there remained a number of restraints on the content of what the press could publish. The offences of criminal and seditious libel, for example, were still punishable at common law. In 1738, Parliament banned reporting in print of the proceedings of either house of Parliament. In 1712, the Stamp Act introduced taxes on the press. These ‘taxes on knowledge’, intended to curb the radical press, created a culture in which journalists and newspapers subsisted through bribes and government subsidies.

2.6 It took a century of campaigning by proponents of the radical press and free speech to secure further independence for the newspapers. Parliament ended the ban on press reporting in Parliament in 1771, after a legal battle by the radical MP and journalist John Wilkes against attempts to arrest several printers for reporting parliamentary debates. The Libel Acts of 1792 and 1843, restoring the right to trial by jury and introducing a truth defence to the charge of seditious libel, provided the press with a measure of security against unmeritorious criminal prosecutions. Newspaper stamp duty was eventually abolished in 1861.

2.7 The repeal of newspaper taxes resulted in a period of rapid press expansion. However, by the early part of the twentieth century, a new form of limitation on press independence had emerged. The proliferation of both regional and national newspapers was followed by a period of consolidation as increasingly powerful newspaper chains bought up provincial titles. For much of the inter-war period the proprietors of these large corporations – the press barons of the day – dominated the press.

2.8 During the Second World War, Government censorship returned, this time in the guise of the now infamous Defence of the Realm Regulations. Regulation 2D conferred on the Home Secretary the personal power to ban any publication which published “material calculated to foment opposition” to the war. Relying on this power, the Government closed down two communist papers. Following mass rallies in response, the ban was lifted.

2.9 In general, however, the press response to the unprecedented levels of Government censorship which characterised the war period was muted. Representative of the type of views being expressed on this issue, but not on others, George Orwell gave the following retrospective perspective:3

“Any fair-minded person with journalistic experience will admit that during this war official censorship has not been particularly irksome. We have not been subjected to the kind of totalitarian ‘co-ordination’ that it might have been reasonable to expect. The press has some justified grievances, but on the whole the Government has behaved well and has been surprisingly tolerant of minority opinions. The sinister fact about literary censorship in England is that it is largely voluntary.”

2.10 During the immediate post-war period, the growth in the power of a limited number of press organisations increased. Growing concern over the dominance of a small group of proprietors led to the establishment of the first Royal Commission on the Press:4

“with the object of furthering the free expression of opinion through the Press and the greatest practicable accuracy in the presentation of news, to inquire into the control, management and ownership of the newspaper and periodical Press and the news agencies, including the financial structure and the monopolistic tendencies in control, and to make recommendations thereon.”

In the final report, the Commission recognised the potential problem presented by the concentration of newspaper ownership. The solution proposed by the Commission was the creation of a General Council of the Press:5

“to safeguard the freedom of the press; to encourage the growth of a sense of public responsibility and public service amongst all engaged in the profession of journalism […]; and to further the efficiency of the profession and the well being of those who practise it”.

2.11 Concerns about the continued diminution in press diversity led to the establishment in 1962 of the second Royal Commission on the Press:6

“to examine the economic and financial factors affecting the production and sale of newspapers, magazines and other periodicals in the United Kingdom, including (a) manufacturing, printing, distribution and other costs, (b) efficiency of production, and (c) advertising and other revenue, including any revenue derived from interests in television; to consider whether these factors tend to diminish diversity of ownership and control or the number or variety of such publications, having regard to the importance, in the public interest, of the accurate presentation of news and the free expression of opinion”.

It found that the share of circulation controlled by the large proprietors had substantially increased; the leading three proprietors’ share of the national daily press amounted to almost 90%. It severely condemned the General Council and urged reform. The industry eventually responded in 1974, when the Press Council was created to replace the General Council.

2.12 Notwithstanding this reform, there remained major concerns about the need to protect editors and journalists from the control of proprietors. The third Royal Commission on the Press was established in 1974:7

“To inquire into the factors affecting the maintenance of the independence, diversity and editorial standards of newspapers and periodicals and the public freedom of choice of newspapers and periodicals, nationally, regionally and locally.”

The report recommended the development of a written Code of Practice, warning “it is unhappily certain that the Council has so far failed to persuade the knowledgeable public that it deals satisfactorily with complaints against newspapers”. The Press Council rejected this proposal.

2.13 In 1989, the Government set up a Committee under Sir David Calcutt QC to investigate growing concerns over invasions of privacy by the press. The 1990 Calcutt Report recommended the establishment of a new Press Complaints Commission to replace the Press Council. The PCC was established in 1991 and tasked with administering a new Code of Practice. Since its inception, concerns have been voiced about the PCC. These developments (and, indeed, a fuller history of all these reviews) are described later in the report.8

2.14 Whilst attempts to achieve a functioning of system of self-regulation stalled, great strides were achieved in securing legal protection for a free press. Beginning in 1950, when freedom of expression was enshrined in Article 10 of the European Convention of Human Rights (“the ECHR”), legal protections for the press have steadily increased. Although Article 10 is a protection for individual rather than corporate freedom of expression, and does not expressly refer to the press, press reportage has consistently been recognised in case law as protected speech. In this regard, the European Court of Human Rights has emphasised the pre-eminent role of the press in a democracy and its duty to act as a “public watch-dog”.9 It has also recognised the importance of pluralism in the media, noting that “there can be no democracy without pluralism. Democracy thrives on freedom of expression”.10

2.15 Consistently with other international instruments protecting freedom of expression, Article 10 expressly acknowledges that freedom of expression generally, including freedom of press expression, may be restricted where necessary to protect the legitimate aims of a democracy. The court has recognised that freedom of expression may need to be restricted in the interests of national security and public morality, as well as individual rights to privacy and peaceful enjoyment of property. The ECHR jurisprudence has nonetheless afforded a broad degree of protection of the press, drawing a distinction, however, between the protection afforded to reporting contributing to debate on economic, social and political issues and press reports involving tawdry allegations about an individual’s private life.11

2.16 Since 2000, Article 10 has been incorporated into domestic law through the mechanisms set out in the Human Rights Act (HRA) 1998. In the years since incorporation, the domestic courts have joined Strasbourg in seeking to strike a balance between the protection afforded a free press, the restrictions necessarily placed on that freedom in a democratic society.

2.17 This brief history makes a number of points about the values and functions of press freedom in democracy. First, the struggle to achieve press freedom (in the sense of freedom from the power of the State) was driven by the democratic value served by the press. Freedom of the press, according to this historical tradition, was and is celebrated not simply because of any intrinsic value of a free press, but because of the public benefits associated with free flow of information and debate.

2.18 Second, it is clear from this history that threats to the democratic function of a free press can take many forms. Government licensing and censorship of content is the most easily identifiable restriction and was deployed with invidious effect in the seventeenth and eighteenth centuries. The democratic freedom to own and operate a printing press in the first place is precious and hard won. However, as the more recent history of the struggle for press freedom illustrates, there are other sources of power which may threaten press freedom, and indeed other freedoms which may have a legitimate claim to being taken into account.

2.19 A free press contains within itself immense power to promote democratic freedoms and the public good. It also contains within itself the reverse potential, that is to say, to create undemocratic concentrations of power and undermine freedoms and the public good. The challenge of securing the democratic benefits of a free press, whilst obviating the harm presented by the unchecked exercise of concentrated or unaccountable power, is the legacy of the historic struggle to free the press. Professor Baroness Onora O’Neill put the matter in this way:12

“I think if we just say we’re in favour of press freedom, we beg all the important questions. The important question is: which conception of press freedom and how do you justify it?”

3. The importance of a free press: free communication

3.1 When confronting the challenge of securing a free press it is important to be clear about why we value a free press and what we seek to protect. Perhaps the most enduring and least contentious rationale for a free press is the argument that a free press contributes to the free flow of communications in a liberal democracy. This can be put in a very broad way, for example:13

“the public interest in … a free press is best construed as an interest in adequate (or better than adequate) standards of public communication, that allow readers, listeners and viewers to gain information and form judgements, and so as to participate in social, cultural and democratic life. A free press is a public good because it is needed for civic and common life.”

And:14

“a liberal public sphere, one in which every member, everyone in the community, can take part is just a very good thing in itself. It’s useful partly for the results it creates but it’s also a good in itself that we all have the status of being able to take part in the liberal public sphere and it seems the press plays a role in that. People who are insufficiently articulate or insufficiently confident to take part in the public speech, the press can give them a voice.”

3.2 A number of serving editors have given the Inquiry the benefit of a perspective from the front line. Representative of such viewpoints was the reference by Alan Rusbridger to:15

“the simple craft of reporting: recording things; asking questions; being an observer; giving context. It’s sitting in a magistrates’ court reporting on the daily tide of crime cases – the community’s witness to the process of justice. It’s being on the front line in Libya, trying to sift conflicting propaganda from the reality. It’s reporting the rival arguments over climate change – and helping the public to evaluate where the truth lies.”

3.3 It is important to note that this is not just a general argument for the benefits of free self- expression. Freedom for commercial mass media businesses (‘corporate speech’) is a very different proposition from the freedom of individual self-expression (‘personal speech’). The latter is discussed further below, and has its roots in a very personal conception of what it is to be human. Take, for example, John Stuart Mill’s argument from On Liberty, that freedom of speech serves a central function in promoting individual autonomy and self-fulfilment. This argument has no direct relevance to press freedom because, put simply, press organisations are not human beings with a personal need to be able to self-express. In any event, “an argument for free speech for the powerless will not make a case for free speech for a powerful organisation.”16

3.4 The general argument for a free press as a means of free communication, on the contrary, has to do with a number of different things. These include the ability to give a powerful voice in the public domain to those unable to do so effectively for themselves (perhaps of diminishing importance in the era of social media and self-expression on the internet). Importantly, it is also to do with the constitution by the media in their own right of a public forum, where information, ideas and entertainment are both circulated and held up to scrutiny. The essence of the importance of a free press is therefore not an interest in free ‘self’ expression but in free communication, the free flow of knowledge, information and ideas:17

“Readers, listeners and viewers don’t need media that ‘express themselves’: they need media that meet at least minimal standards for adequate communication with intended audiences.18 The critical public interest in a free press is not so much in a press which exercises self-expression as in a press that is free from censorship, not subject to some kind of central control.19 Even if the press does have a very important right to freedom of expression, you have to remember that it’s justified by what it does for individuals by constituting a public sphere in which all individuals can take part.”

3.5 A free press will not necessarily provide an effective ‘market-place for ideas’. The freedom of the press is a prerequisite for that, but not sufficient in itself, for all sorts of reasons. There must be some degree of effective connection between communicators in the press; and when some elements of the press are more powerful communicators than other papers and individuals, its capacity to facilitate informed debate may be impaired. In a similar vein, a measure of plurality of voices is required if a free press is to enhance democratic debate.

3.6 The ‘argument from truth’, which identifies free speech as an important condition for the attainment of truth, is also not straightforward when applied to the press. Mill’s argument that society will benefit from “the clearer perception and livelier impression of truth, produced by its collision with error” may hold in relation to the battle between truth and falsity expressed by individuals (but even then, only in the sort of discourse which aims at the truth). However, it is less certain that truth will prevail in the encounter between individual and institutional speech, or between different forms of institutional speech. To put the matter bluntly, “there is nothing to stop a free press … from freely deciding to support corruption or to be involved in it. We cannot assume that a free press, or specific agents within a free press, will be motivated to provide the kind of content that is, in fact, in the public interest.”20

3.7 The fundamental point is that unlike freedom of expression for individuals, which has intrinsic merit as a form of self-expression, press freedom has value to some extent as an aspect of commercial freedom, and to some extent because of the functions it serves. In other words, freedom of the press is largely understood as an instrumental good, to be valued, promoted and protected to the extent that it is with the result that it is thereby enabled to flourish commercially as a sector and to serve its important democratic functions.

4. The importance of a free press: public debate and holding power to account

4.1 There are two, more specific, strands to explanation for the importance of a free press in a democracy. They were explained to the Inquiry by different witnesses in these terms:

“a free press serves the public interest instrumentally in two key respects:
“there are also some very well-known instrumental benefits of the press. So it’s a very important check on political power and other forms of power. It’s an important source of education and an important means of enabling democratic decision-making.”22
“The public interest in a free press lies largely in the character of our society as a liberal democracy. It is in the public interest that there be a free press because and insofar as such a press serves as a necessary bulwark against government duplicity or tyranny. A free press serves also to inform people about the principles under which they live and the policies which government adopts and pursues in their name. This is of particular importance in a democratic society where governments are elected by the people and act in the name of the people. The argument from democracy is, so to speak, a ‘guiding light’. Insofar as it reminds us of the most important purpose of a free press, it also, and at the same time, reminds us of the most significant duties of a free press – duties to communicate those things which people need to know if they are to be effective and informed citizens”23
The serious purpose the press serves, the purpose which makes it critical to a genuinely free and democratic society has two principal components – to inform citizens and to enable citizens to hold accountable those who should be serving the wider public .”24
A free press can communicate important facts that the public have a legitimate interest in knowing (and which others might want to conceal). …one aspect of the public interest in a free press is that it provides an essential set of checks and balances on power (and, more importantly, the abuse of power). …there is a public interest in learning of dangers and risks, even where others may wish to conceal them…. A free press, free of the censorship and restrictions imposed by the powerful, … serves the public interest by its investigative and communicative role. Both roles are necessary.”25

4.2 First, therefore, a free press serves democracy by enabling public deliberation. Citizens need information to make intelligent political choices. To this end, the press serves both as a conduit for the dissemination of information as well as a forum for public debate. It is therefore unsurprising that the proliferation of newspapers which followed the abolition of the stamp duty in the nineteenth century was accompanied by one of the most active periods of political reform in modern history.

4.3 The second way in which a free press serves the interests of democracy is through its public watchdog role, acting as a check on political and other holders of power. The press is able to perform this function because of its hard-won position as a powerful institution independent of the state, a position which earned it the nickname or sobriquet of the Fourth Estate amongst nineteenth century writers.

4.4 The British press has a strong tradition of holding power to account. A forerunner of investigative journalism, Charles Dickens, exposed some of the cruellest aspects of Victorian society in his excoriating accounts of the workhouses. More recently, investigations conducted by his modern counterparts at The Daily Telegraph resulted in the exposure of widespread misuse of the parliamentary expenses scheme by Members of Parliament. Less headline grabbing, but of equal significance, is the role of investigative journalism in consumer affairs and at exposing abuses of power in publicly-run institutions such as hospitals, care homes and prisons.

4.5 Again, it is not a given that a press which is simply free will perform this function. The press must be independent from those in power and must be afforded the privileges necessary to enable investigative journalism to take place. It must also be ‘active, professional and inquiring’.

5. Press freedom within the rule of law and the role of statute

5.1 The unique power wielded by the press plays a vital function in democracy. However, this power must also be used consistently with other democratic values. A free press in a democracy must therefore operate within certain parameters.

5.2 Chief amongst these is the requirement that press freedom promotes, and operates within, the rule of law which itself is often described as the cornerstone of a democratic society.26 Although the democratic function of the rule of law is primarily associated with the idea of government in accordance with the law, the doctrine’s deeper implications concern the need for accountability and constraint of all power in a modern democracy:

“Be you never so high, the law is above you”27

5.3 Lord Bingham encapsulated this essential function of the rule of law in his now celebrated monograph on the subject, in which he defined the rule of law as follows:28

“[A]ll persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts.”
In other words, the rule of law is at the cornerstone of democracy because it protects the freedoms on which democracy depends, including press freedom, from arbitrary power.

5.4 In a modern democracy that abides by the rule of law, press freedom can never mean a press which sits outside, above and beyond, or in disregard of, the law. Respect for the law is the common framework within which the press, as an important commercial sector, is enabled to flourish, to preserve and enjoy its freedoms, and to make its unique contribution to a democratic society.

5.5 That general principle relates to the law (both common law and statute) which applies to press organisations in the same way as it applies to other commercial organisations; these include the laws of taxation, for example, and, where relevant, the requirements of company or trust law. It also applies to the law which is of particular application to the activities of the press, specifically including information-gathering and publication. Appendix 4 to the Report sets out the principal sources of law applying in this more activity-specific way to press organisations. Some of this law is of particular, or modified, application to the press; whether or not that is the case, in many ways it does constrain the conduct (or ‘freedom’) of the press in order to hold it in balance with other important aspects of the public interest. How it does so is considered more fully below.

5.6 The point of paramount importance for present purposes, however, is that there is a fundamental public interest in respect by the press for and obedience to the law. A press considering itself to be above the law would be a profoundly anti-democratic press, arrogating to itself powers and immunities from accountability which would be incompatible with a free society more generally. All who have the privileges and responsibilities of holding power to account, including police, politicians and press, must themselves champion and uphold the accountabilities they proclaim for others. The rule of law, in other words, ‘guards the guardians’ and is a guarantor of the freedom of the press, not an exception to it.

5.7 Reference has already been made to the separate public interest in a press which is diverse. Even if newspapers are, as editors have forcefully suggested, merely the passive conduits of their readers’ views, the argument for a multiplicity of such views is clear. To the extent that the press does more, and is capable of influencing public opinion, the argument becomes even stronger. These arguments are recognised in general terms by plurality and media specific competition laws, which apply both to the print and broadcast media. Of course, I fully appreciate that plurality and partisanship are separate concepts; that the print media is fully entitled to be partisan; and that the broadcast media is required to be impartial. The simple point I am making about the press is that an irreverent and opinionated print media should, taken as a whole, reflect a range of views if it is fully to realise its potential to contribute to the public interest.

5.8 From this brief overview, it is possible to see that the organisation, activities and products of the press are in many ways limited by, or made accountable through, the operation of the law, that is to say, both common law and statute. In this, the press is no different from any other provider of, or participant in, democratic public life. As explained above, the rule of law is at the most fundamental level the guarantor of the freedom of the press, not an exception to it. And where it limits the activities or the press, or makes the press formally accountable for its actions, the law is simply performing its inherent democratic functions of balancing competing freedoms and competing public goods. So much is to state the obvious.

5.9 That it needs to be stated at all, and more than stated, emphasised, is a result of two lines of argument put to the Inquiry, both of which are dealt with more fully below.

5.10 The first of these is the proposition that the press is, or should be, ‘entitled’ to break the law where to do so would be ‘in the public interest’. It is certainly true that there are a number of modifications in various aspects of the law applicable to the press which gives it greater latitude within the law than is afforded to others. But that, emphatically, does not mean recognition within the law that, as a matter of general principle, the press possesses any entitlement or expectation to be indulged, in the national interest, in special exemption from observing the requirements of the law. The Inquiry has been asked to consider the possibility of recommending that a general public interest defence be accorded to journalists in relation to what might be described as the whole of the criminal law insofar as it relates to the press. I give this proposal full and independent consideration.29

5.11 The other reason to clarify that a free press within a mature democracy operates within the rule of law is to address the line of argument, put to the Inquiry from time to time, that a statutory framework for, or underpinning of, press standards would by itself be repugnant to a proper view of the freedom of the press. This argument, in turn, appeared in two distinct forms.

5.12 The first version of this argument posits that any change to the law by Act of Parliament to require or restrict any behaviour by the press, or to increase its accountabilities, regardless of the content or justification of any such change, is intolerable in a democracy as an act of state control. I understand this argument, but believe that it completely lacks merit. It seems to rely, at some level, on a mistaken conflation of state censorship with the ordinary democratic processes of making and applying statute law.

5.13 As has been illustrated, there are many forms of statute law which already restrict the activities of the press, whether in terms of their organisation, competition or activities up to and including in limited cases what it may or may not be lawful to publish (race hate, for example). On the face of it, these statutory restrictions are legitimate and proportionate exercises in democratic lawmaking, balancing competing public freedoms and goods. Of course, as such, they need to be justified, and considered on their merits. Not every statutory restriction possible will be proportionate and justifiable. But to contend that no statutory reform could be so is to push the argument far beyond any reasonable statement of principle. Ultimately, there is no necessary connection between statutory underpinning of a regulatory system (to apply the argument more closely to home), on the one hand, and state censorship on the other, nor in my view is there some sort of slippery slope gliding from the first to the second.

5.14 The second variant of the argument is more limited. It is put by witnesses, such as Lord Hunt, on the basis that any proposal for statutory reform of the law as it applies to the press contains within it a risk of exposure to a Parliamentary process in which a commitment to the importance of press freedom does not at present exist.30 There are two objections to this argument. The first is that I am aware of no empirical evidence to support it.31 On the contrary, in recent years there are, I think, examples only of Parliamentary law making in respect of the press which is clearly focused on strengthening, rather than restricting, the freedoms of the press.32

5.15 The second objection is an objection of principle and constitution. More than one view is no doubt possible of how the freedoms of the press should best be held in balance with other freedoms and public goods. Parliament is the proper and legitimate forum within which such views can and must be debated in a democracy. If the press fears for its liberties in a Parliamentary context, its answer is to ensure that the case is put with maximum clarity in that forum, not to seek to avoid the forum altogether.

6. The protection of sources and other legal privileges of the press

6.1 A free press is able to perform valuable functions which individual free speech cannot. It is because of the position of the press as an institution of power that it is able to stand up to and speak truth to power. The professional skills and resources at its disposal enable the press as an institution to carry out ground-breaking investigations in the public interest. It is these considerations and functions which have resulted in the press as an institution being afforded certain privileges going beyond those protected by freedom of speech.

6.2 Principal amongst these is the press privilege not to disclose sources of information. Now enshrined in section 10 of the Contempt of Court Act 1981, the privilege means that a publisher cannot be compelled to reveal the source of published information unless a court considers such disclosure to be in the interests of justice or national security or for the prevention of crime. The Police and Criminal Evidence Act (PACE) 1984 confers a similar procedural privilege, preventing the police from access to journalistic material without authorisation obtained by application to the court. Furthermore, the courts have also recognised the right not to disclose sources as an important facet of the free press, as is reflected in the following words of Lord Woolf CJ:33

“The fact that journalists’ sources can be reasonably confident that their identity will not be disclosed makes a significant contribution to the ability of the press to perform their role in society of making information available to the public”.

6.3 Furthermore, whilst the press are not above the law, the criminal law does on occasion accord journalists a form of protected status34 as well as certain protections in relation to otherwise defamatory publications (e.g. qualified privilege and the ‘Reynolds ’ defence). These matters are all covered in some detail later in the report and stand to be enhanced in the Defamation Bill presently before Parliament. Suffice to say, these privileges afforded to the press are important precisely because they enable the press to serve the public interest in carrying out investigative journalism and disseminating information: they are not afforded for any other reason.

CHAPTER 3
COMPETING PUBLIC INTERESTS

1. Context

1.1 The public interest in a free press is fundamental. But it cannot be viewed in isolation. As has been demonstrated, it is, itself, an aspect of wider public interests such as the public interest in democracy, for example, in public life and in the rule of law. There are other public interests also of which press freedom is not a major aspect, and with which it may sometimes be in tension. This section considers some of them, in order to put the public interest in a free press in its fuller context, and to reflect on how competing aspects of the public interest are resolved and reconciled.

1.2 The ‘public interest’ is therefore not a monolithic concept. Nor is it the particular property of the press or any other organisation or sector. It will often be a matter of balancing a number of outcomes which would be for the common good, but which cannot all be achieved simultaneously. In a democracy, this is principally a role for Government that is, for example, used to grappling with a balance between the public interests in public spending and in low taxes, in liberty and in security, in high accountability and low bureaucracy.

1.3 That is by no means to portray any aspects of the public interest as mutually exclusive or zero- sum. On the contrary, the fact that many aspects of public, and indeed private, life may benefit the public makes the task of the decision-maker a much more subtle and skilful one than that. There are critical decisions to be taken about how to balance, weigh and reconcile many things that are in themselves good but not all of which may be simultaneously achievable. So it is a complex task for those charged with it, and one for which accountabilities are rightly demanded. A wider perspective than that of the press is therefore inevitable:1

“There are more components of the public interest than those that are served by a free press, so that the press may need to control its activity to respect those wider factors. … Sometimes it seems that the press’s confidence that its activities are serving the public interest makes it insensitive to the complexity of that notion.”

1.4 Most proponents of free speech, for example, accept that its exercise must be restricted in order to protect the rights and interests of others. There is an important public interest in free speech, and there is also an important public interest in the civil liberties of individuals. These may sometimes need to be reconciled. Certain acts of speech, such as speech inciting violence or race hate, are so connected with producing specific conduct as to be relatively unprotected. Even Milton, in a passage from the Areopagitica overshadowed by his rhetoric in defence of a free press, acknowledged necessary limits to free speech (although not necessarily limits which we would now condone):

“I mean not tolerated popery, and open superstition, which as it extirpates all religious and civil supremacies, so itself should be extirpate … that also which is impious or evil absolutely against faith or manners that no law can possibly permit that intends not to unlaw itself”.

1.5 Some of those who place the strongest emphasis on press freedom take their lead from the principally American brand of ‘free speech absolutism’. Free speech absolutists take the injunction of the First Amendment to the United States Constitutions at face value: that Congress shall make no law abridging the freedom of speech. Within this tradition, the United States Supreme Court has developed some of the most extensive protections of free speech in the democratic world, including the protection of religious and racist hate speech as a species of ‘political speech’.2

1.6 However, even in a culture committed to maximum protection to free speech, the absolutist position has proved impossible to sustain. In practice, the United States Supreme Court imposes extensive restrictions on freedom of speech by identifying categories of speech which are deemed not to fall within the scope of the First Amendment. These categories include for example advocacy of imminent illegal conduct, official secrets, defamation and fraudulent misrepresentation. The Supreme Court has also denied that certain categories of sexually explicit material amount to protected speech and has been prepared to sanction far more extensive restrictions of obscene material than exist in the UK.3

1.7 Article 10(2) of the ECHR itself permits “formalities, conditions or restrictions” on freedom of expression so long as they are prescribed by law and necessary in a democratic society. Thus, to the extent that press freedom is protected as an aspect of the protection of freedom of expression under Article 10, certain restrictions will be necessary and justifiable in the overall public interest.

1.8 The Inquiry invited thoughts on the place of press freedom within a wider concept of the public interest by asking the following question, both of some of the expert witnesses and more generally of the public at large via the Inquiry website:4

In order to maximise the overall public interest, with what other aspects of the public interest would freedom of expression, or freedom of the press, have to be balanced or limited? The Inquiry is particularly interested in the following, but there may be others:
  1. the interest of the public as a whole in good political governance, for example in areas such as:
    • national security, public order and economic wellbeing,
    • the rule of law, the proper independence and accountability of law enforcement agencies, and access to justice, and
    • the democratic accountability of government for the formation and implementation of policy;
  2. the public interest in individual self-determination and the protection and enforcement of private interests, for example
    • privacy, including (but not necessarily limited to) the rights to privacy specified in general in Article 8 of the European Convention on Human Rights and in European and national legislation on the protection of personal data,
    • confidentiality, the protection of reputation, and intellectual and other property rights, and
    • individual freedom of expression and rights to receive and impart information where those interests and rights are not identical to the interests and rights of the press.
What follows picks up some of the strands of thought in the responses the Inquiry received to these questions, and which seemed to be particularly pertinent.

2. Freedom of expression

2.1 As noted above, the rights of individuals to freedom of expression have different origins from the public interest in the free speech of the press. Thus, freedom of expression or speech has value for individuals because of its ability to contribute to individual self-expression and self-realisation.5

“Freedom of individual expression is important for the development and maintenance of social identity, and for forming relationships and associations, for developing projects (that may be counter to prevailing opinion or orthodoxy).”

2.2 There is a distinct public interest in individual freedom of self-expression. Liberal democracies are composed of individuals free to express and develop themselves. It was put to the Inquiry in this way:6

“Freedom of thought and expression are also in the public interest because they constitute the public as a society of equals who respect one another: a society in which each member can participate and bring their own views to the public sphere. This is a good independent of the instrumental benefits it brings.”

2.3 The public interest in individual freedom of expression is a distinct and different aspect of the public interest to press freedom. Here is one way in which the difference was explained:7

“The press has, as it were, no ’self’ to fulfil, so an argument from self-fulfilment or self-development will not be directly relevant to questions of press freedom. More importantly, however, demands for press freedom are not (or not centrally) demands for free expression, but rather for the communication of information, and even if we think that individuals need to be able to express their views in order to develop fully as human beings, it does not follow that extensive freedom should be extended to those (eg the press) whose primary concern is with communication of information. To put the point starkly, those who aim to communicate must aspire to standards which are inapplicable for those who aim only to express their own views.”

2.4 The democratic rationale for freedom of expression in relation to individuals is also different from the democratic interest in a free press. It encompasses the individual’s right to receive information, impart his or her own views and participate in democracy on an informed basis. Democracy benefits from a free press where the press, taken as a whole (a sum of partisan parts), communicate a plurality of views and provide a platform for public debate.

2.5 In this context, mass communication by the press has the capacity both to enhance and inhibit individual freedom of expression. It is therefore necessary to bear in mind the important point made to the Inquiry that some limitations to freedom of expression under the law are necessary in order to protect free speech from being inhibited by the free speech of others. This is a significant issue when there is an imbalance of power between the competing voices. A free debate cannot happen if some participants simply drown out others and prevent them from speaking. As the New ealand Law Commission pointed out in its submission to the Inquiry:8

“[C]ensorship is not the only enemy of free speech. Those who exercise their free speech to intimidate, bully, denigrate and harass others on the internet lessen the credibility of free speech arguments. Even though the web provides those who are harmed by free speech the opportunity to exercise their right of reply, not all have the courage or the standing to exercise it. In effect, those who exercise their free speech rights to cause harm may inhibit others from participating freely in this vital new public domain”.

2.6 Such restrictions may be necessary to protect the freedom of expression of one individual or group of individuals from the speech of another individual or group of individuals. For example, speech which inhibits personal self-expression, be it artistic, religious or sexual, or which intimidates others into silence, inhibits freedom of expression of others. This is why society does not protect racial or religious hate speech in law.9 Nor is there protection in law for speech which is threatening, intimidating or harassing.10

2.7 When one individual’s right to freedom of expression is inconsistent with the similar rights of another, a difficult balancing exercise must be carried out in law. It may also be necessary to balance the public interest in the free speech of the press against the public interest in the freedom of expression of individuals. Race hate would be no more protected in the pages of a newspaper than it would anywhere else. This is, of course, a straightforward example. Political philosophers and ethicists would say that more complex issues arise where individual freedom of expression is put under pressure by the free speech of others in ways which are not objectionable in law but which nonetheless might be objectionable on other grounds.

2.8 There are, for example, those cases in which the free speech of one party is experienced in a very intimate way as a threat to the core self-expression and identity of another. That is the context, for instance, in which debates about the portrayal of women and some minorities in the press is conducted.11 There is a public interest in the free expression of views (and images) which some, perhaps many, find objectionable. There is also a public interest in the liberty of individuals to live free from publicly promulgated stereotyping which limits their own expression and development of themselves. This is not in any sense a point about censorship or law. It is a very simple and self-contained point about competing public interests in free expression.

3. Personal autonomy and civil liberties

3.1 To this extent, the public interest in individual freedom of expression is an aspect of a broader public interest in the autonomy, integrity and dignity of individuals. More generally, personal autonomy and human dignity require that individuals enjoy a protected personal sphere over which they exercise a measure of autonomous control. This is a dimension to the public interest which has a very ancient history in the UK and a special place in public imagination. It underlies the iconic status of habeas corpus as an early guarantee of personal liberty, and it underlies the special importance of freedom from interference in home life: ‘an Englishman’s home is his castle’.

3.2 Personal autonomy means that individuals must have a sphere in which they can exercise individual choices without interference from others (including the state). This important personal sphere has been described in Western liberal philosophy in terms of the public interest in personal privacy. As David Feldman has stated:12

“The combination of the idea of a right to be respected as a moral agent with the idea of social spheres of decision-making within which people or groups are entitled to regard themselves as free from outside coercion are, I suggest, of the essence off the notion of privacy as a civil liberty.”

3.3 It is evident and well evidenced that the public interest in free speech and free self- expression does, on occasion, come into tension with the public interest in individual privacy and autonomy. Both are protected in law. Article 10 of the ECHR (freedom of expression) is held in a dynamic balance with Article 8 (home and private life). This dynamic balance has been developed in the English law of the protection of privacy. Lord Hoffmann observed in Campbell v MGN Ltd that the protection of privacy was essential to “the protection of human autonomy and dignity – the right to control the dissemination of information about one’s private life and the right to the esteem and respect of other people”. In the same case, Lord Nicholls agreed that “[a] proper degree of privacy is essential for the wellbeing and development of an individual”.

3.4 Thus the existence of a private sphere is vital for human development. It is the space in which individuals are able to experiment with preferences and build personal relationships beyond public scrutiny and judgment. Violations of the private sphere prevent individuals from obtaining these benefits. The private sphere is also critical to personal autonomy as a space over which an individual exercises control. To invade someone’s privacy disregards that individual’s choices as to when and by whom he or she will be seen and what personal information he or she will divulge.

3.5 That element of choice and control of the personal sphere, although a fundamental public good, is also capable of being exercised contrary to the public interest. So, for example, where an individual seeks to draw a veil of privacy over his or her criminal conduct, then the public interest in privacy will come into conflict with the public interest in law enforcement. But even there, the balanced result will be a partial and not a complete invasion of privacy, and one which is carefully prescribed by law; even in prison there are basic guarantees of human dignity.

3.6 Where the public interest in free expression, in holding power to account, and in the pursuit of wrongdoing are all aligned on the one hand, and conflict with the public interest in an individual’s privacy on the other, it is clear that the balance will be able to come down in favour of the former. But again, it is important to keep in mind that the public interest in privacy, although compromised, never completely goes away. Violation of the private sphere must always be proportionate to any larger public interest being served. The element of control over one’s personal life is never all-or-nothing, but a matter of an infinite number of degrees and decisions.

3.7 Where an individual has chosen to put a matter within the private sphere into the public domain, then he or she will have ceded a measure of control over it.13 Making choices of that nature is of the essence of personal autonomy. They do not necessarily imply that other choices will be made, much less that the freedom to make other choices is also being ceded. Everyone is entitled to some private space and always provided that there is no countervailing public interest in exposure of that private space (because, for example, it exposes crime or serious impropriety)14 there is a public interest in preserving it.

3.8 This important point was made in a number of ways to the Inquiry.15

“An actor who is successful may be well known because his films are viewed by many. He may indeed wish and hope that many continue to view the results of his (and others’) craft. It does not follow from this that he has a pathological compulsion to display himself, or to have every aspect of his life observed and documented. Nor does it follow that he has made some kind of tacit contractual agreement, where he has waived his privacy rights in exchange for fame.... “Those who do wish to enter a quasi-contractual agreement where they exchange the protection of privacy for an increase in their fame should not be prohibited from doing so, but it does not follow from this that everyone that the public might have an interest in … should have their private lives placed at risk of intrusive and invasive acts.”16

3.9 To treat an individual merely as something to be talked about, reported or looked at against his or her wishes is contrary to the public interest in individual autonomy, and to the ethical imperative to treat individuals as an “end” and not simply as a “means”.

3.10 It is right to acknowledge however that the nature of the public interest in privacy and our understanding of the implications of choices made by individuals about their privacy are matters which lie at the heart of a number of fast-moving contemporary social changes, about which a clear and stable consensus may not yet have been reached. The explosion in use of social media, particularly by the young, has not yet been matched by a settled understanding of the implications of the choices that people make in placing private material online; many do so unwisely or naively with disproportionate exposure to exploitation of such material and the compromising of their privacy.

3.11 At the same time, the nature of commercial ‘celebrity culture’ continues to be pondered even as it evolves with great rapidity; again, there is as yet no settled understanding or consensus about this. A celebrity obviously gives up his or her right to privacy if he or she sells an intimate photograph to a newspaper. How far this goes is another question. The right is clearly ceded as regards the transaction in question, but does that give the newspaper or even the press in general, a blank cheque for all purposes or for all time? Put in those terms, the answer, in my view, is clearly not. But around the margins there may be issues of fact and degree.

3.12 In any event, while the precise limits of the public interest in this area may be being developed and contested, the underlying basics must not be lost sight of. As Professor Megone put it:17

“Journalists and editors need to recognise that both personal privacy and the importance of confidentiality can in part be understood in terms of an agent’s ownership of his own information, and the importance of that to the control of his own life. These are matters a free society seeks to protect as part of the public interest – and the press need to be clear that they may well need respecting even when such respect adversely affects journalistic activity”

3.13 The protection of the “reputation and rights of others” is expressly identified by Article 10(2) of the ECHR as a necessary public interest basis for limiting the expression of others. The right to freedom of expression must therefore be accommodated with other fundamental liberties. Thus, when confronted with conflicting claims under two protected ECHR rights, the courts must undertake a difficult balancing exercise to determine which will prevail. This is the reason why there is no protection for speech (written or oral) which unjustifiably damages a person’s reputation or which interferes with a person’s “reasonable expectation of privacy”.18

4. Other public goods

4.1 The relationship between freedom of the press and the public interest in justice is similarly a matter of balance. On the one hand, freedom of expression is integral to the principle of open justice, which encompasses the entitlement of the media to impart and the public to receive information in relation to the process of justice. Therefore, any restriction on the ability of the press to report proceedings openly must be expressly limited.19 On the other hand, reporting restrictions may be necessary if the right of an individual to a fair trial would be prejudiced by publication of information about the proceedings: this is no more than the protect the integrity of the justice system and a person’s right to a fair trial.

4.2 Even more fundamental are the limits on freedom of expression necessary to protect a democratic society in which freedom of expression is able to flourish. Thus, first listed in the restrictions on freedom of expression permitted by Article 10(2) are those “necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime”. These are straightforward concepts which speak for themselves.

CHAPTER 4
THE RESPONSIBILITIES OF THE PRESS

1. Context

1.1 The idea that freedom of expression comes with responsibilities is both obvious and entirely familiar. Article 10(2) of the ECHR provides that the right to freedom of expression “carries with it duties and responsibilities”. In part, this is because, as discussed in Chapter 3, unrestricted speech has the power to harm competing public interests, including the free speech of others. It is also because the press is an institution of considerable power and the exercise of power in a democratic context brings with it proportionate responsibility for the consequences of choices to do so. Moreover, where power is exercised purportedly in the public interest, then there is a particularly acute responsibility to account for the exercise of that power to the public in whose name it is exercised.

2. Press power and the impact on society

2.1 In order to understand the responsibilities incumbent on the press, it is necessary to consider the nature of press power and the potential it has to impact on society. One obvious aspect of the power wielded by the press is its capacity for mass communication :1 “Mass communication has powers that local, individual, communication does not. Mass communication allows others to criticize, to inform of the failings, crimes, and deceit of the powerful. Mass communication allows agents to assemble, to unite, to form dissident movements, to organize and oppose those in power.”

2.2 It is on account of this capacity of the press to communicate to large audiences, that the idea of the “megaphone effect” of the press was invoked with such frequency throughout the Inquiry. The megaphone effect of the press has a tremendous capacity to serve the public interest. It is because of the ability of the press to reach a wide audience that it is taken seriously by, and therefore able to stand up to, other institutions of power.2

“[O]ne aspect of the public interest in a free press is that it provides an essential set of checks and balances on power (and, more importantly, the abuse of power): in all too many parts of the world the state routinely tortures and murders its citizens, though reporting of such facts is strictly prohibited. This can help a vicious regime retain an air of legitimacy, or, in some cases, even to present the air of democratic legitimacy (there are putative democracies which have serious restrictions on press freedom). Similarly, the there is a public interest in learning of dangers and risks, even where others may wish to conceal them. A powerful industrialist might wish to conceal the fact that his factories are polluting the water supply, or that his company’s product is carcinogenic. A free press, free of the censorship and restrictions imposed by the powerful, thus serves the public interest by its investigative and communicative roles.”

2.3 This power of the press to reach a wide audience, whilst having the capacity to do great good, carries certain risks:3

“Communication is a relational process, taking place between speaker (or writer) and audiences. A powerful media, even a powerful free media, can effectively block dissenting voices”.
Mass communication by the press can block dissenting voices in a number of ways. One is by preventing access to audiences. Access to audiences is integral to the ability of individuals to experience the communicative aspects of free speech:4

“Expression can be done by a lone individual, but communication is essentially relational, and involves others. Individual speakers have an interest in being accessible to audiences. Communication can be stifled, not by blocking speech, but by blocking access to audiences. For example, suppose a cunning King permits dissenting political views to be expressed, but only at the bottom of a deep mine shaft. Though here, strictly speaking, one has an opportunity to express one’s views, one is not free to have them heard. Not only do we have an interest in there being an audience for our speech, we also have an interest in our being the audience to others’ speech.”

2.4 Clearly, if a particular individual or group of individuals are denied access to the press to promote their views, their ability to reach audiences is diminished:5

“Writers of such columns in the press can seek to mitigate these criticisms by endeavouring to articulate what they take to be important or widespread lines of thought. But this still points to the fact that in terms of self-expression the press only allows a select few to promulgate their views. Although absence of censorship allows others to set up press outlets, in principle the resources required to do this effectively limit this opportunity. This argument could be taken further and it could be said that the public interest in freedom of expression can even be adversely affected by a free press, if certain other conditions hold such that some voices get much more prominence than others. In those conditions the power of the press as a medium of expression may lead to certain views dominating the public sphere and other views being squeezed out.”

2.5 One consequence is that views expressed through the press megaphone are more likely to predominate: “Whether something’s liable to be noticed, what effects it’s liable to have on other people’s perceptions must be very relevant”;6 “Financial power ensures that one sort of idea is more likely to be promoted in the newspapers people read than another sort of idea”.7

2.6 The tendency of views expressed in the press to prevail can be also be explained by a second, and related, facet of press power. There is no doubt that the press is considered a voice of authority in society. In many quarters, it has rightly earned a reputation for accurate and vigorous reporting, independence and holding power to account. It is because of the authoritative quality of the press, combined with its access to mass audiences, that communication by the press, as an institution of considerable power, has a significant impact on society. It can set the news agenda, shape culture and change perceptions:8 9 10

“There is a great deal of difference between ‘a bloke down the pub’ claiming, to his fellow drinkers, that the MMR vaccine causes autism, and a broadsheet newspaper doing the same thing. Media institutions can shape public opinion, they can entrench, or change, public opinion in a way that individual speakers cannot.”

2.7 The existence of a press with such significant power is a potent antidote to the dominance of big business and government; but it also has potential to do great harm if not exercised with responsibility:11

“If someone in a position of moral or political authority makes a statement about race or about gender, it isn’t simply that there will be a wider audience for that but also that the opinion comes with a greater degree of – with an imprimatur, or seems to, and that itself is problematic. That’s why positions of responsibility in society are very difficult, because you have to take a lot of care about what you say because people pay attention to it.”

2.8 The press has the power to cultivate stereotypes, not just as a matter of the megaphone effect, but by cumulative effect also:12

“there is an asymmetry between the individual case and the case of the press. One of the reasons we tolerate the fairly broad-ranging right of individual expression is that individuals’ remarks are typically limited in their impact… But …this megaphone effect is a kind of culture-shaping effect … It exerts much greater influence and power on people, how they’re perceived by others, creating stereotypes or creating certain assumptions in society.”13
“It means that publications in the press are peculiarly vulnerable to promoting stereotypes, because it’s – what’s heard is widely heard. If it’s assumed that a member of a group is portrayed as a typical member of that group, then attitudes at large towards the group will be affected.”14

3. Communication: truth, comment and ‘assessability’

3.1 The role of a free press as an agency of free communication (rather than of self-expression), of constituting a public forum of views and ideas, is an important one to focus on. The term ‘media’ implies both a conduit or market-place role (the means by which material is communicated) and also the freedoms of the press to comment, in a partisan way, on the material that they publish (the message is editorially ‘mediated’). The vocal power and reach of the press, and its freedoms to mediate, are what make it a mighty force.

3.2 A free press performs its communication role in a democracy in a myriad ways, day in and day out. It is by no means only through political journalism and holding authority to account that the press proves its value in this way (although those are very important aspects in their own right). All forms of journalistic content potentially perform this vital role. Debate and comment, information and speculation, news and opinion, education and entertainment, all play their part. It is exactly this multifunctional and multifaceted package of content, produced with such verve and to deadline week in, week out, which makes the press such a marvel, such a matter of pride.

3.3 The different functions of the press, though, have different implications. We care about them in different ways and for different reasons. We apply different standards to them. So, for example, we might say we wanted the TV listings and football results to be ‘accurate’; the editorial to be ‘opinionated’ (perhaps to confirm or challenge, or help us form, our own opinions); the sports reporting to be ‘lively’ (and reasonably fair), the travel writing to be inspiring but not misleading, the crossword to be challenging but not impossible, and so on. And above all, we want it all to be accessible and a good read, as we all think of that in our different ways. This communication function is, in other words, an extremely complex and sophisticated exchange between editor and reader.

3.4 Nowhere is that more the case than in the role of the media in conveying news. It is here that both the demands and expectations of readers are particularly complex. We know that some news is more important than others, but we vary in our judgments about that. We want to know the facts, but we also want to know how people experienced them and what people think about them. We want the spirit as well as the letter of events – the emotion, the meaning, the drama, the implications. We have an instinct that different kinds of news should be communicated in different ways (a politician’s mistake, an outbreak of disease, a missing child, a disappointing new film, another rape in the town), but we will not find it easy to articulate those differences with any great precision.

3.5 We also know about the editorial inflection, the world-view, of the newspaper we read. For some, if not most, that is very much part of why it is their newspaper of choice. That does not mean we always agree with it. But we are familiar with it, and that familiarity is at some level part of the attraction. Newspaper readership is remarkably loyal. We want the news in the press to be true and accurate; we do not want to be misled or lied to. But we want, or are content for, it to be presented in a partisan way. We want a measure of balance and context, but we also want a perspective. We want the truth, but we understand that there are many versions of the truth, and incompleteness in all versions. Notwithstanding the emphasis put by both the industry and its critics on the difference between ‘fact’ and ‘comment’ these are by no means distinct and watertight categories. The very act of describing a fact is to comment on it. All forms of recording are selective.

3.6 What authentic communication between editor and reader needs in these circumstances is no more, but no less, than a measure of shared understanding of what is going on in that act of communication. In most cases, that is easy and obvious. There will be a common expectation of complete accuracy in the TV listings; mistakes will irritate and inconvenience readers and ultimately drive them to look elsewhere. A newspaper urging readers to support a particular party in the run-up to a General Election can be expected to be more sympathetic to that party’s outlook and objectives than another’s, and to reflect that sympathy editorially elsewhere in its pages.

3.7 But in some cases, it will be neither easy nor obvious for readers to orientate themselves in relation to material they read in the press. Some important examples were put before the Inquiry in the course of the evidence. They included, for example:

  1. science and health reporting, where most non-specialist readers cannot easily judge for themselves what experts are telling us;
  2. consumer journalism such as property or travel reporting and restaurant reviewing, where we might not know whether a journalist has been an objective ‘mystery shopper’ or whether he or she has in fact been treated to holidays or meals by the organisations being reviewed, or owns a property in the same square as the house being praised in the newspaper;
  3. ‘PR’ journalism, in which what is effectively commercially-produced advertising material is reproduced as editorial without mediation at all;
  4. the reporting of identity issues (gender, ethnicity, sexual orientation, religion, age, disability, appearance and so on) where the fact and manner of bringing such issues into coverage has a potential to implant a relevance for them in readers which they have not chosen.

3.8 In all these cases, that is to say the inaccessible expertise, the conflicts of interest, the subliminal, or the simply misleadingly incomplete, the reader cannot straightforwardly make up his or her mind about what the newspaper is saying. Professor Baroness Onora O’Neill, who gave the Inquiry her views as a leading expert in the field of public thinking on the role of the media, describes the need for readers to be able to ‘orientate’ themselves in relation to what they read as “assessability”. Mostly, readers know where they stand with what the papers say, and can make their own minds up about it. But not always. Where they cannot do so unaided, more is needed for the press to fulfil its proper role.

3.9 This point about the importance of authentic communication by the press, which respects the needs of readers to be able to make their own minds up about what they are reading, was made to the Inquiry in a number of ways. Examples include:

“Those who aim to communicate must aspire to standards which are inapplicable for those who aim only to express their own views.”15
“The public interest in a free press is not confined to the public interest in a press that reports matters of fact accurately and observes the disciplines of truth seeking needed for various sorts of inquiry. It also includes an interest in having a press that communicates other sorts of content – eg music and art, puzzles and stories – that do not make truth claims. Nevertheless, where truth claims are made, there is a particularly strong public interest in standards of media communication that meet the relevant requirements for truth seeking – accuracy about evidence and its limitations; distinctions between different sorts of evidence; the inclusion of necessary qualifications, and many others.”16
“Good public interest journalism enables the public to judge what is being said. There may be cases where one has to hold back on the source of certain information, but good public interest journalism seeks to make the sources and the evidence as available to the public as is feasible, given certain other constraints.”17
“I think the default in favour of openness is actually what good journalism does. They try to give the sources where they can. The difficulty about confidential sources is the problem that the reader has in knowing (a) was there any source at all and (b) was it a reliable source?”18
“One aspect of the public interest … is the public interest in truthfulness … Here there are two kinds of interest. There is the direct interest that individuals have in not being deceived or misled. …But there is also a second indirect interest in truthfulness, an interest in maintaining a culture of trust. If communication is believed to be untruthful (or inaccurate), then trust in communication may diminish.”19
“Simply requiring accuracy or truthfulness does not preclude a free press from misleading, distorting, or, in some cases, from covertly serving or promoting vested interests.”20
“News media are often intermediaries. They play the role of communicating facts that have been discovered, established or claimed by others. The evidence, warrant or other justification for such claims may be lacking, or suspect. The intermediary may not be competent to assess the claim, or have access to the evidence. They may be willing to pass on claims made by other self-interested parties in an uncritical way. …”21
“Knowing the source of a story is relevant to how we interpret it. Audiences’ reactions to an article on a ‘new wonder drug’ that ‘combats cancer’ might be less favourable if they knew that the copy was verbatim from a press release by the company making the ‘wonder drug’. Our response to ‘advertorials’ may (or at least ought to be) different from our response to news stories.”22
“With regard to truthfulness and other norms of communication, the arguments offered here are not that this or that claim ought to be made but rather, that the appropriate procedures and mechanisms need to be in place to ensure that what is said (whatever it is) is justifiable, assessable and evaluable with regard to its source. … Ensuring …communicative adequacy does not determine or constrain content, except insofar as content is unjustified, misleading and untraceable.”23

4. Press ethics and the role of a code of ethics

4.1 Press ethics, to which the Inquiry was directed by its Terms of Reference, can be understood at a simple level by reference to the choices available to a free press, where those choices may have consequences for the benefit or harm of others, whether individuals, groups or the public as a whole. These are the choices by which newspapers and journalists can exercise their freedoms so as to fulfil the unique and important role of the press in a democracy or indeed to undermine it, to promote or restrict public communication and debate, to enhance or harm civil liberties and the autonomy of individuals.

4.2 These are choices which fall to be made within the framework of the law. Compliance with the law (criminal, civil and regulatory) does not necessarily exhaust the ethical choices to be made by a free press, nor does consideration of legal risk and consequence exhaust the responsibilities of a press aiming at journalism in the public interest, which takes into account ethical risks and consequences.

4.3 The choices that a responsible and ethical press will make, then, flow from precisely those aspects of a free press which give it a unique role and privileges in a democracy, and from an awareness of its power to affect the public in general, and individual members of the public, for better or worse. The following are examples.

  1. If a free press in a democracy has a special role in facilitating free communication and in constituting a public forum, then an ethical press will want to comply with good standards of communication. It will want to enable people to recognise and assess the material being provided. Where it provides information, that information will be reasonably intelligible and accurate.
  2. If a free press in a democracy has special privileges to keep its sources secret, then an ethical press will be mindful of the reasons for and effects of that privilege and will exercise it only for those reasons, and bearing in mind those effects. It will want to ensure that the protection of sources is used to enhance the free flow of significant information and especially to protect those seeking to help hold power to account. It will not use it merely to constrain or control sources, nor will it abuse the privilege to mask the weakness or absence of sources or the existence of conflicts of interest, or to hide its own wrongdoing.
  3. If a free press in a democracy has a special place because of its ability to hold power to account, an ethical press will consider itself to have responsibilities to do just that. It will not collude with the powerful at the expense of the public. It will challenge all kinds of sources of power, both public and private. It will be mindful of the power of the press itself, and seek to hold that power to account no less than other sources of power. And it will support others with responsibilities for holding power to account in doing so, including in the case of the media itself.
  4. Further, a free and autonomous press within a democracy will be mindful of the democratic freedoms and autonomies of others. All such freedoms and choices, after all, stem from the same sources of democratic authority and accountability. And all ethical systems have at their core a sense of respect for the individuality and self- determination of others.24 People are the stock-in-trade of journalism. An ethical press will therefore be especially mindful of the need to ensure that the individuals it deals with, both as sources of information and as the content written about, are treated as subjects and not objects, and both as subjects in their own right and as subjects in context, with families, connections and group identities which may be affected by the treatment of the individual.

4.4 All of this is to re-emphasise that the freedom of the press, even the freedom of the press within the limitations and accountabilities under the law, is not enough by itself to secure the important democratic benefits for which press freedom is a prerequisite. To become an authentically free press of the kind valued and privileged in a democracy, the press must also exercise its freedoms effectively for that purpose. It must actively choose that role and live out its implications. That point was made to the Inquiry in many ways; examples include:

“The duties or responsibilities of the press follow straightforwardly from the reasons we have for wanting a free press. So if one of the main reasons for wanting a free press is that we be fully informed as citizens, then there are responsibilities on the press to be accurate, honest, open and accountable.”25
“Clearly though, a press which is free in the sense of not being controlled centrally, not censored, will only be meeting a necessary condition for serving its purposes of informing and scrutinising. In order for the press to serve these public interests it will also need to pursue its work with accuracy and rigour, to be concerned for the truth, to seek to avoid bias or serving particular interests, to make wise judgments as to what is worthy of public attention and what not, and perhaps to be courageous in pursuing these goals. (And it may well also be … that in order to serve its purpose the press needs to communicate in ways that are intelligible and assessable).”26
“Freedom is not licensed, and that’s the way in which all these responsibilities bear on how you exercise your freedom. So you have those guiding aims of the media … – holding people accountable and presenting information – serving those roles and then these constraints.”27
“The strategy here has been to focus on the valuable ends that a free press is meant to serve and then to point out (a) that a free press need not secure those ends; (b) that a free press can even stand as an obstacle to the achievement of those ends. This is not to argue in favour of censorship but to point out ways in which a free press can fail to contribute towards the public interest, and, as such, public-interest based justifications will fail to apply.”28
“it is important for good judgment that the press is clear not only on the nature of the purposes it serves in a free and democratic society but on their partial contribution to public interest as a whole and the independent significance of other components of the public interest. … In my view the press itself at present assumes too quickly that freedom of the press (and free expression to the extent that is related to press freedom) is sufficient to guarantee that the press serves its distinctive role in contributing to the public interest. On the one hand this is problematic because press freedom is only a necessary condition for the press to make its distinctive contribution to the public interest. Treating it as a sufficient condition is making the press insensitive to all the other factors that are critical to this – accuracy and rigour, avoidance of partiality, bias, conflict of interest, and the other factors mentioned above. All these must receive appropriate attention. But this is also problematic because assuming that a process (a free press) will achieve a beneficial goal allows journalists and editors to fail to address carefully the question of what exactly that distinctive purpose is, or how it relates to other parts of the public interest.”29
“While it is important to protect genuine investigative journalism into matters of public interest … it is also important to distinguish the genuine article from purported investigative journalism that ignores or flouts the relevant disciplines of truth seeking, or is not directed at any matters of public interest. Pseudo public interest journalism discredits the genuine article, is not assessable by its audiences and damages the reputation of the media.”30
“The moral justification for a media organisation’s rights of expression and communication … turns on the role of media organisations’ rights in constituting a public sphere that gives appropriate status and respect to individual people, and on the related instrumental grounds [of constraining power and enabling democratic deliberation and decision-making].”31
“The public interest is not just in a free but a diverse press, and also – given the press’s power and its central role within the public sphere of democratic policy-making – an accountable press too.”32
“The fact that the press has certain investigative powers doesn’t mean automatically that it has carte blanche to do whatever it wishes to find things out.”33
“Freedom and responsibility are not incompatible notions. … Principally behind the notion of freedom in my account is freedom from censorship, from authorities coming in and telling the press what they may or may not say with respect to output, but they may nonetheless have a number of responsibilities they need to respect in producing those outputs. I think that’s very important. No, I don’t see them as inconsistent.”34

4.5 The point was also made more narrowly, to underline that the freedom of the press, and the value inherent in its freedom to publish, is the beginning and not the end of the questions about the public interest:

“The fact that freedom of expression is in the public interest – and it clearly is – it doesn’t follow that every instance of expression is in the public interest.”35
“I think a kind of slippage can happen in which this freedom of expression is seen to be the primary public interest the public has in the press, and then that can then seem as liable to trump many of the other side constraints. … So, and if one’s a journalist and one values being allowed to write what one thinks is important, … there’s a kind of, as I say, a natural slippage in which this freedom of expression can be seen to be the dominating aspect of one’s code.”36

4.6 I set these thoughts out to underline, and indeed to risk labouring, the point that ethical standards are not inconsistent with a free press but necessary for it fully to realise the value of its freedom. Ethical standards and behaviour are about valuing the freedom of the press for what it is, and seeking to promote all that is good about that freedom, and not just about avoiding the shoddy and the disreputable (far less just the unlawful). A free press certainly has choices which it can exercise in ways which undermine the premises of its freedom and work contrary to the public interest. An ethical press will not choose to exercise its freedoms in that way.

4.7 With freedom, rights and privilege therefore come choices, and with choices, responsibilities as to how they are exercised and with what consequences. With choices which affect the public sphere, come also public accountabilities.

4.8 The private interests of the press industry, or of organisations within it, can be expected to be strongly aligned with the public interest for just this reason: it is what the free press in a democracy is all about. But there will also be powerful motivations of a contrary nature to be overcome by an ethical press. An ethical approach requires a culture of care and awareness, but deadlines are short and time is money. A diverse and plural press will also be a highly competitive one, contesting among its titles for readership and reputation. And the pressures of public demand, real or perceived, are by no means a reliable guide to the public interest.

4.9 This latter point is a well-worn one: the fundamental difference between the public interest and what interests the public. It is nevertheless a point which it is important to stress once again, if only because of the seeming indefatigability of the argument in some quarters that whatever sells newspapers must ipso facto be a good thing, since newspapers are a good thing in themselves. The argument is sometimes put more subtly: that newspapers should simply meet the demands and expectations they perceive their readers to have or be capable of having in a non-judgmental way, and that the flourishing of newspapers by such means directly supports their ability to fulfil the higher purposes and freedoms of the press. But this is simply a further restatement of the error that because it is good for the press both to flourish and to be free to make choices, its exercise of those choices in its own perceived interests will itself necessarily be good. The fallacy of this line of reasoning was emphasised to the Inquiry in a number of ways:

“The key point here is that the fact that people have a (vicious) curiosity clearly does not entail a right to know those things, nor does it automatically excuse those who breach other norms in the service of that curiosity.”37
There is no ethical duty at all to provide audiences with whatever they want, even if there are good economic reasons for doing so.”38
“The ‘we are only providing people with what they want’ may appear to have a whiff of nobility about it, but where people’s wants are vicious, it is little more than an admission of lack of moral sensitivity.”39
“[The idea of the public’s ‘right to know’] is puzzling and problematic for many reasons. First, it is not clear what the scope of the right is (right to know what?). Second, the very idea of a right to know is problematic. If it is a negative claim right (no one is permitted to stop me from knowing) then this does not entail any correlative right of publication or communication. But a positive right to know (others are obliged to ensure that I know) is not feasible: I might not believe them, even if they tell me the truth. Worst still, it doesn’t tell us anything at all about whom the obligation to inform might fall upon.”40

4.10 The commercial interests of the press in supplying or stimulating demands for particular kinds of content are not therefore either identical to, or even necessarily aligned with, the public interest in a free press. More than that, in an industry with people as its stock in trade, and assuming an evident and growing public appetite for information about other people which is contrary to the public interest because of the way in which it affects the personal autonomy or individual rights of those people, the commercial interests of the press have a clear potential to act contrary to the public interest.

4.11 There are other respects in which the commercial interests of the press have a clear potential to tend contrary to the public interest. They include the instances discussed above in which the private interests of individual journalists, editors or proprietors may be engaged in editorial content in ways which may not be apparent to their readership.41 They also include incentives to anti-competitive business practices and cartel behaviour, that is to say practices which may benefit one organisation at the expense of the diversity of the sector as a whole, or which may seek to unite the industry against healthy competitive disciplines and external scrutiny capable of benefiting readers and the public as a whole.

4.12 There was some emphasis throughout the Inquiry on the place of ethical codes in supporting an ethical press. I put the matter that way with care. No code of ethics can make an unethical organisation or sector an ethical one. An unethical organisation will simply find ways round or disregard any code it purports to apply to itself when motivated to do so. An ethical organisation, on the other hand, will be helped and guided by a code of ethics, but that will be on the basis that the code is simply a clear encapsulation of the values and practices of the organisation in any event.

4.13 This is a very fundamental issue about culture, practices and ethics, and the way they relate to each other. Professor Christopher Megone, who has worked extensively with industry bodies (mainly in finance and engineering) on issues of workplace ethics, put the matter this way to the Inquiry:

“Of course an ethical media organisation needs to have an ethical code, one which reflects the distinctive mission of the organisation as part of the press (and thus is aware of the key role of the press regarding the public interest), and one which is sensitive to the particular ethical challenges that may arise for editors, journalists, etc in pursuit of their mission.
“However, even more critical to the existence of an ethical media organisation is culture. … If there is an unhealthy culture then an organisation can have an ethical code but it will have little influence. Members of the organisation can undergo ‘ethics training’ but it will have little effect. As soon as they return from the training to their desk or office, the pervasive culture will dominate their decision-making. The culture brings to bear all sorts of ‘accepted norms’ which an afternoon’s training will be relatively powerless to affect. (I do not, of course, think that good ‘ethics training’ is pointless, but simply that its effectiveness depends on whether, or to what extent, other factors are in place in the organisation.) …
“… there are a number of critical factors that could be expected to bear on ethical culture in a media organisation. First, tone from the top – leadership – is of tremendous importance. The role of owners and editors here will be crucial. Certainly the organisation needs to have its ethical code, but that code needs to be fully understood and endorsed by its owners and editors, and these people need to live out that code day in and day out. This is a decisive factor in that code having meaning for all who work in the organisation. But their living it out means thinking about how they can convey the code through their practice right across the organisation, how they interact with employees right across the organisation in a way that makes it resonant for them. …
“Secondly, an ethical organisation needs to have an open and honest culture in which it is possible for members of the organisation to raise their concerns about practices and to discuss them with colleagues and senior staff. … [S]taff need to feel confident that if they perceive unsatisfactory practices to be developing, or face a challenging situation, they can raise the matter with colleagues or senior staff. And they need to be confident that they can do so, and have a proper discussion, without fear of mockery or retribution. ‘Accepted norms’ need to be open to challenge. …
“Amongst other things, developing an open culture in a press/media organisation will require sensitivity to the particular kinds of pressure that journalists and other employees are bound to be under.”

4.14 Against this background, an operative code of ethics therefore would have a number of potential functions.

  1. It would serve as a reminder of the special importance and roles, the freedoms and privileges, the power and responsibilities of the press. It would, in other words, provide a full context for the choices which fall to be made in practice so that they can be made in accordance with the principles to be derived from this context. It would, in short, explain what ethical (or, as it is sometimes described, ‘public interest’) journalism is.
  2. It would help journalists to understand the circumstances in which they are called upon to make ethical decisions. It would help them to make the right choices in practice. It would do this not as a matter of rigid and disconnected prescriptions and prohibitions, but by promoting “a stable disposition to act in certain ways for the right reasons”.42
  3. It would recognise and explain the circumstances in which the temptations and motivations to act unethically (including commercial motivations) may be especially strong, and why they need to be resisted, in order to change the incentive structure in such cases.43
  4. It would seek to provide clarity, and would focus on practical applicability to everyday decision-making.
  5. It would not expect to stand alone. It would take its place in a context of ethical culture, sources of advice and guidance both generally and at the particular levels of training, reinforcement, management and feedback.
  6. It would be authoritative and respected. It would have consequences in terms of how individuals and organisations are perceived, in terms of rewards and sanctions.

4.15 The Inquiry asked a number of its witnesses specifically, and through its website the public more generally, what would be the distinguishing features of the culture and practices of a media industry, or any organisation which was a part of that industry, which would make it a recognisably ‘ethical’ one. I was particularly interested to hear in response about Professor Baroness O’Neill’s suggested ‘six principles of openness’44 for identifying ethical journalism which seem to me to have much to recommend them:45 (a) openness about payments from others (b) openness about payments to others (c) openness about the interests (financial or otherwise) of owners, editors, programme- makers and journalists (d) openness about errors (e) openness about (most) sources, with an adequately drawn test of the public interest to allow sources to be kept secret, for specific reasons and in particular situations (f) openness about comments from members of the public.

4.16 It is also worth setting out extracts from some of the answers to this question which appear to me to be particularly illuminative.

“I do not mean a media industry driven by ethical goals in the way that a charity like Oxfam is. I mean, rather, a media industry whose members and whose regulatory framework, while driven by a range of diverse goals that are not necessarily ‘ethical’ in a narrow sense, are nonetheless deeply sensitive to the industry’s pivotal role in the liberal public sphere … A free press within an ethical media industry in this sense would have the following features, among others:
– a sense of journalism as a profession with its own aims and values, including respect for the truth, respect for those about whom the press writes, respect for readers;
– poor practices (unethical, illegal, or contrary to the reasons supporting press freedom) are regarded as shameful and their practitioners are ashamed of them;- whistle-blowers are supported;
– journalists, editors and proprietors grasp the complexity of the moral role of the press (as, perhaps, politicians since the expenses scandal grasp the moral complexity of their own role);
– the wider public is willing to pay the comparatively high costs (e.g. of ethical investigative methods) to support a press that upholds a liberal public sphere.46” In my view media organisations are ethical if they genuinely try to communicate in ways that enable intended audiences to understand and to assess what they publish, while respecting the legitimate claims of those on whom they comment and of those affected by their reporting.
These are demanding aims. To meet them the media need not only to refrain from unlawful speech acts (threatening, bribing, defaming, breaches of data protection, breaches of confidentiality – and many others) but to meet adequate ethical and epistemic standards in journalistic, editorial and business practice.”47
  1. There is a need for an aspirational code, not simply a list of prohibitions against failings which those in the media fall into.
  2. Such a code needs to be presented in the context of the specific critical contribution that a free press can make to the public interest...
  3. The code could then be developed in terms of the duties to the key parties with whom the press/media interact in ethically relevant ways.
  4. A code by itself is not worth the paper it is written on unless it is a lived code. To make a code a lived code, media organisations need to attend to the critical factors that can bring about an ethical organisation, or promote integrity in an organisation. These factors include tone from the top (or leadership), an open and honest culture, and so on. …
  5. Part of developing such an ethically reflective organisation might be to introduce governance reports which press/media would produce annually, writing such reports in light of the requirements of the code. The reports might reflect both on the ethical culture of the organisation and on the organisation’s contribution to the public interest. Any such governance reporting would need to avoid either being overburdensome or being a mere ritual in order to be both effective and meaningful…”48
“In order for a code of conduct to be properly effective it has to be, not only coherent and justified in terms of its normative content, but such that there is something about the social, institutional, legal or practical context that motivates and secures compliance.”49

4.17 I conclude this analysis by recognising the risks that this Inquiry must confront. The Editor-in-Chief of the Mail titles, Paul Dacre, identified these risks, and the challenges the Inquiry faces, in this way:50

“...I would argue that Britain’s commercially viable free press, because it’s in hock to nobody, is the only real free media in this country. Over-regulate that press, and you put democracy itself in peril.”

I have always been keenly aware of the dangers of going too far; and I have been continually reminded as the Inquiry has progressed. In short, it has not been difficult for me to remain alive to this critical risk. I go further. The public interest in a press which is free, which is viable, and which is diverse cannot be too highly valued. Without investigative journalism, and the ability of the press to scour hidden places, the domain of the powerful, for potential wrongdoing, our democracy would be severely impoverished. Nothing I shall recommend will fail to hold to these principles.

CHAPTER 1
CONTEXT

1. Introduction

1.1 The Inquiry is required to examine the culture, practices and ethics of the press but, in order to do that, it is helpful to set out the commercial context within which the press operates. This Part of the Report looks at the market for news provision and some of the ways in which it is changing as well as the newspaper market more generally. This Chapter looks briefly at the economics of the newspaper market and where the challenges are coming from.

1.2 Chapter 2 looks at the main players in the newspaper industry, including a brief review of the history of each where relevant, the financial and commercial performance of each and the governance and compliance processes in place at each title. This is all important background in order to understand the differences, if any, between the cultures and practices of individual titles and publishers. The focus of Chapter 2 is on the national press, and within that on those with the largest circulation and market share. The Chapter also looks briefly at the markets for regional and local newspapers and for magazines, drawing, in particular, on evidence that the Inquiry has heard from specific titles. There is no attempt at a detailed analysis of these markets; this is not needed for the subsequent consideration of the issues at the heart of this inquiry.

1.3 Chapter 3 looks at other, non-print, news providers. This includes both the economic models and market pressures, but also the regulatory environment within which they operate. Again, this is important context for subsequent analysis.

1.4 Finally, Chapter 4 looks at the way in which competition law specifically applies to the press and the media, providing a brief history of media ownership and plurality provisions and how they currently apply.

2. Commercial pressures on the press

2.1 It is undeniable that the market in which newspapers compete has changed substantially over recent decades and continues to change rapidly. The rise of digital broadcasting and the internet mean that UK citizens now have a much broader range of news and media providers offering news coverage, current affairs and entertainment than ever before; and newspapers have to compete in this market both for advertising revenue and for readership.

2.2 The result is that newspapers have a significantly smaller reach than they did 20 years ago, to say nothing of 50 years ago, and are operating in a media environment in which consumers and citizens have very different expectations of standards from different types of media. Whilst newspapers are losing their share of the market, the costs of producing the news are not reducing significantly and much of the competition on the internet comes from organisations which are not, themselves, the originators of news content.

2.3 These changes mean that the commercial environment in which the press is operating is quite different to that in which the current self-regulatory regime was first established.

Newspaper economics

2.4 The media landscape in 2012 is very different from that which Sir David Calcutt QC looked at when he made his recommendations that led to the establishment of the PCC in 1990. Then, the internet did not exist as a consumer medium, UK citizens had access to only four terrestrial TV channels, BBC1, BBC2, ITV and Channel 4, and satellite broadcasting had only just begun and was accessed by only a tiny minority of families. On the radio, citizens could listen to the (then) four BBC national radio stations (only joined midway through 1990 by Radio 5), local BBC radio and 69 commercial local radio stations. This meant that, in reality, most people had a choice of only two different radio providers.

2.5 National newspaper circulation stood at over 15 million for the national daily newspapers and nearly 18 million for the Sunday papers.1 Regional and local press circulation (for paid-for papers) was nearly 17 million in total. The UK citizen therefore had limited sources of news and was heavily dependent on newspapers; broadcast media was limited to a very narrow range of broadcasters, with TV broadcasters, at least, having a public service remit in respect of news.

2.6 The picture now is very different. The citizen today has a very wide range of sources of national, international and local news and comment, in a world of ever growing media complexity. Virtually every UK household has digital TV, providing a profusion of channels, including four free-to-view 24 hour news channels and others available with subscription. There are now 21 national radio channels, and 344 local radio stations,2 all of which will carry some form of news.

2.7 Over 70% of adults in the UK have access to broadband.3 All media organisations, whether newspapers, broadcasters, or others now have some form of established internet presence, and the internet has opened up access to UK citizens to news coverage from across the world; some of this is from professional media organisations, but it also includes ‘citizen journalism’ from individuals sharing their experience of, and views on, events that occur. Nearly a quarter of all the time that adults spend engaging with media is spent on the internet.4

2.8 Against this growing digital activity, newspaper circulation has fallen significantly, as shown by the table below. The national daily newspaper circulation stood at 9.45 million in September 2011.5 As Claire Enders explained at one of the Inquiry seminars in October 2011, the declines since 1990 and the Calcutt report have been biggest in the popular national press and the regional press, both falling by over 40%6 while the quality national press have seen falls of only 25% over that timescale. However, the decline has accelerated since 2005;7 that period has seen the whole of the 25% post-Calcutt fall in circulation of the quality nationals, while the popular nationals have fallen only by 14% in that time scale. Whilst other media sectors are now showing recovery from the recession, that is not the case with newspapers and magazines.8

2.9 This table shows circulation for both national daily and Sunday titles in September 2002 and September 2012. Although the speed of circulation decline differs from title to title there is an evident trend here.

Table C1.1: National newspaper circulation 2002 - 2012

Title Circulation Sept 2002 Circulation Sept 2012 % change
The Sun 3,733,052 2,445,361 - 34.49
Daily Mirror 2,130,859 1,072,687 - 49.66
Daily Star 855,880 586,743 - 31.45
Daily Record 540,886 272,799 - 49.56
Daily Mail 2,387,149 1,884,815 - 21.04
The Express 942,842 543,912 - 42.31
Daily Telegraph 934,527 560,398 - 40.03
Times 640,424 406,711 - 36.49
FT 417,911 287,895 - 31.11
Guardian 389,894 204,937 - 47.44
Independent 187,042 81,245 - 56.56
 
News of the World 4,067,205   n/a
Sun on Sunday   2,082,755 n/a
Sunday Mirror 1,804,334 1,087,940 - 39.70
People 1,301,799 455,973 - 64.97
Daily Star Sunday 719,308 407,239 - 43.38
Sunday Mail 656,921 310,135 - 52.79
Mail on Sunday 2,306,911 1,758,720 - 23.76
Sunday Express 910,177 493,586 - 45.77
Sunday Times 1,387,182 904,548 - 34.79
Sunday Telegraph 744,023 446,526 - 39.98
Observer 432,938 238,282 - 44.96
Independent on Sunday 186,188 120,340 - 35.37
Source: Audit Bureau of Circulations9

Newspaper revenues

2.10 Newspaper and magazine revenues come from three sources: copy sales revenue, display advertising and classified advertising. In the national press the main revenue streams are overwhelmingly sales revenue and display advertising: 52.6% from copy sales in quality press, 58.2% in popular press and only 27% in the regional press, where classified advertising makes up 41.4% of revenue. Both copy sales and display advertising revenue streams are under pressure.

2.11 Competition for display advertising spend is marked, with much advertising moving online. The Online Advertising Bureau stated that UK digital advertising expenditure grew 2.6% to £2.59 billion in the first half of 2012.10 In addition, advertising spend has historically declined when growth in the economy is slow, adding further pressures on newspaper revenues. More dramatically, print classified advertising has been particularly hard hit by the move to online. Online models have proved highly successful with buyers and sellers.

2.12 Thus, revenues accrued through recruitment advertising have reduced from £150 million per year to £20 million per year, and there has been a similar decline in property advertising.11 Recruiters simply do not need to place print advertisements any more. Further, public sector advertising, once a source of considerable revenue for both regional and national press, has also largely moved online with significant implications for the revenues of newspaper businesses.12 The editors of Scottish, Welsh and Northern Irish newspapers who have given evidence said that advertising revenues were particularly important for the smaller circulation papers, and emphasised the impact of the loss of advertising from the public sector for those smaller papers.13

2.13 All of this means that newspapers face significant economic pressures. However, whilst newspapers revenues have fallen for most publishing groups in the last five years, the different ownership and operation structures within the industry mean that the impact of these pressures is different.

2.14 Table C1.2 below shows the revenues of major newspaper groups in 2012 and the change from 2005 to 2012.

Table C1.2: Newspaper revenues

Publisher newspaper division FY 2010 revenues (£m) 2005-10 change in revenues (%)
National newspapers
News International* (News Corporation) 1,047 -2%
Associated (DMGT) 850 -3%
Trinity Mirror national division 430 -14%
FT Group (Pearson)** 403 21%
Telegraph Media Group 324 0%
Guardian News and Media (GMG) 221 -5%
Express Newspapers (Northern & Shell) 214 -26%
Regional newspapers
Johnston Press 398 -23%
Trinity Mirror regional division† 331 -48%
Northcliffe (DMGT) 294 -43%
Newsquest (Gannett) †† 344 -53%
Notes: Unless otherwise stated, 2005-10 change in revenues is not like-for-like
*News International includes News Group Newspapers Ltd and Times Newspapers Ltd
**FT Group 2005-10 change like-for-like: 2005 revenue excl. IDC, reported in 2006 annual report
†TM regional division 2005-10 change like-for-like: 2010 revenues excl. GMG Regional Media
††Newsquest revenues converted to sterling using exchange rate stated in annual report
[Source: Enders Analysis based on company reports]

2.15 Certainly there has been no structural like-for-like shift in advertising revenues for newspapers from print to online editions. Although the proportion of advertising online spend has grown at a considerable rate, those revenues are shared by a far greater number of businesses including micro bloggers and other online businesses. Although the internet enables highly personalised targeted advertising, for which advertisers will pay a premium, such revenues derived from advertising directed at specific types of user, so-called targeted or behavioural advertising, have not in any way matched the decline in revenue from traditional sources. It is certainly telling and illustrative of the challenges faced by newspapers that the UK’s most successful online newspapers, the MailOnline and the Guardian, have yet to find a way of converting this into substantial or comparable profit.

2.16 This advertising is driven by the availability of vast quantities of data, both personal and more general, that users upload when they make online purchases, or through anonymised tracking of individuals ISPs and other providers when users browse the internet. This model has served the internet industry and users well to a point. However, recent changes to the law restricting the use of cookies and other tracking technologies without the informed consent of the user may further dilute the potential revenues that a newspaper or other business may derive from this source.

2.17 The Inquiry has been told that circulation may be boosted temporarily, through price cutting or promotional campaigns, but these do not generally have a long term impact and circulation levels tend to fall back once the promotional activity is discontinued.14

Impact of pressures on business models

2.18 The Inquiry has heard different interpretations of the impact of these economic pressures on newspaper business models. It is common ground that falling revenues and the increased need to produce copy 24 hours a day has resulted in fewer journalists having to do more work.

2.19 Editors have argued that the financial levels affect staffing levels but that this simply means that journalists work harder15 and that there is no reduction in the quality of journalism. The Inquiry has been told that the economic difficulties have not affected training of journalists.16

2.20 Others17 have suggested that the effect of journalists having to produce more stories in less time and with less resource is that material is not as thoroughly checked as it once was, press releases are reproduced uncritically and stories are recycled around the media with little development or additional checking.

2.21 The impact on regional newspapers has been more severe, with a number of titles merging or closing. For example, the Trinity Mirror portfolio of regional newspapers has fallen from 160 titles to 140.18

2.22 Across the press the same challenge faces all titles in respect of how to make money from content online in a world where advertising revenues and revenues from physical circulation continue to decline,19 whilst readership online is growing. Two UK daily titles (the Financial Times and the Times) operate behind paywalls but this is not necessarily seen as a solution that can work across the industry.

2.23 That is not to say that, as is clear from Chapter 2 in this Part, there are not parts of the UK press that are profitable and, in some cases, highly profitable.

CHAPTER 2
THE PRESS: HISTORY, GOVERNANCE STRUCTURES AND FINANCES

1. Introduction

1.1 In this Chapter I examine the history, governance structures and finances of the major British newspapers. I will look first and in some detail at those newspapers owned by News International (NI), and ultimately by the parent company in the US, News Corporation.1 This is fitting given the central role of the News of the World (NoTW) in the events that led to establishment of this Inquiry, as well as the extraordinary influence that Rupert Murdoch has exercised over the development of the press in Britain, since he purchased NoTW newspaper in 1969. I will then look at the history, governance structures and finances of the other major British newspaper publishing houses, before turning albeit briefly to the regional press and the magazine industry.

2. News Corporation

Group history and context

2.1 News Corporation (News Corp) was founded in 1979 as a holding company for Mr Murdoch’s Australian newspaper business, News Ltd, to manage News Ltd’s growing portfolio of international assets particularly in the United Kingdom and the US.2 Mr Murdoch is both the Chairman and Chief Executive of News Corp3 which, as of 2009, is the world’s second largest media conglomerate in terms of revenue, and the third largest in terms of entertainment. Although News Corp was initially incorporated in South Australia, reflecting the Australian origins of the business, in November 2004 the company was re-incorporated under Delaware Corporation Law. News Corp is now listed on the NASDAQ and has secondary listings on the Australian Securities Exchange.

2.2 News Corp now has global reach, and in addition to its holdings in its traditional British, American and Australian newspaper markets, it has substantial operations in India, Italy, Germany, Brazil and Hong Kong that span both traditional media as well as new media, telecommunications and the internet.4

Group governance

2.3 News Corp is headquartered in New York. The News Corp Board of Directors is made up 17 directors and includes those in executive and non-executive capacities.5 The Board sets the strategic direction for News Corp and its subsidiaries and is responsible for the corporate governance of the company. These processes are published on the News Corp website.6 In June 2012 News Corp announced that it intends to pursue the separation of its publishing and media and entertainment businesses into two distinct publicly traded companies. Rupert Murdoch would remain Chairman of both companies.7

2.4 The Murdoch family owns a 29% stake in the company. As these shares are voting shares, Mr Murdoch exercises effective control of the company. Prince Alwaleed bin Talal al-Saud of Saudi Arabia owns 7% of News Corp’s shares through his Kingdom Holding Company, making him the second largest shareholder in News Corp.

The Management and Standards Committee

2.5 News Corp established the Management and Standards Committee (MSC) to take responsibility for all matters in relation to phone hacking at NoTW, payments to the police and all other related issues at NI.8

2.6 The MSC is autonomous from News Corp and NI.9 It works to ensure full co-operation with all investigations into these issues, including this Inquiry, the police inquiries, civil proceedings and Parliamentary hearings.

2.7 The MSC is authorised to conduct internal investigations to fulfil its responsibilities in relation to NI’s papers: The Sun, The Times and The Sunday Times. It has power to direct NI staff to co- operate fully with all external and internal investigations, and to preserve, obtain and disclose appropriate documents.

2.8 An important part of the MSC role is to recommend and oversee the implementation of new policies and systems to ensure that editorial practices at NI’s titles meet the highest standards.10 The MSC’s role is to ensure that NI’s titles are underpinned by a robust governance, compliance and legal structure.11

2.9 The MSC originally reported to Joel Klein, Executive Vice-President and a director of News Corp,12 but at the time of writing, reports to Gerson weifach, Senior Executive Vice-President and Group General Counsel of News Corp, who in turn report to the independent directors on the News Corp Board through Professor Viet Dinh, an independent Director on the News Corp Board of Directors.13 The role of the MSC is addressed in more detail later in the report.14

Financial results

2.10 News Corp estimates its global assets to be worth some $61.98bn.15 Its financial results reflect the global scale of the organisation. In 2010, it reported a turnover $32.78bn, an 8% increase on its turnover for 2009.16 In 2011, this had risen further to £33.41bn. News Corp posted profits of $2.54bn in 2010 and $2.99bn in 2011.17

2.11 Although newspapers were once central to the News Corp business model this is no longer the case. In the 2009/2010 financial year, newspapers accounted for just 13% of News Corp’s overall profit.18 By contrast, in 2001, newspapers had contributed to 30% of News Corp’s total profits.19 In 2010 New Corp’s television businesses provided around 56% percent of the company’s total profit.

2.12 The closure of NoTW in July 2011 affected the profitability of the company’s newspaper and publishing businesses. Profit fell 38%, to $110 million. The company reported a $91 million pre-tax charge related to its British newspaper business.

Annual conference

2.13 In addition to its media interests, News Corp also plays a role in public policy discussion, organising and hosting an annual Management Conference, the aim of which is to provide a forum for the discussion of media issues and policy in relation to world events. The conference is not only for News Corp’s senior executives and journalists but also for policy makers and other interested parties. The conference has been held in Cancun, Mexico, and Hayman Island, Australia, as well as Pebble Beach, California.

2.14 The News Corp Management Conference is a private event, and in so far as can be established, no records of the meetings are made available. However, details of the 2006 event in Pebble Beach were leaked together with an agenda to the Los Angeles Times.20 According to that newspaper, agenda items ranged from discussions on Europe, to broadcasting and new media and terrorism. Speakers have included Rupert Murdoch, the Governor of California, Arnold Schwarzenegger, Tony Blair, ex-President Bill Clinton, Al Gore, Senator John McCain and the Israeli President, Shimon Peres.21

News International

2.15 News Corporation’s UK newspaper interests are held by its wholly-owned subsidiary, NI,22 which is the parent company both of Times Newspapers Holdings Ltd (TNHL) and of News Group Newspapers Limited (NGN). Times Newspapers Limited (TNL), the publisher of The Times and The Sunday Times, is a subsidiary of TNHL. NGN is the publisher of The Sun and The Sun on Sunday, and formerly published NoTW.23

2.16 In 1987, NI bought the Today newspaper, a mid-market tabloid that had launched in 1986 and pioneered the use of colour printing and computerised editing. However, the title struggled financially and did not make a profit. It was closed on 17 November 1995.

2.17 In September 2006, NI launched The London Paper. This was the first title to have been launched rather than bought by the UK subsidiary. The London Paper, an evening freesheet published fives times each week, was distributed at bus and railway stations across London. In September 2009 the paper closed in the face of intense competition from the other free titles distributed in London, including the Metro, the London Lite and the Evening Standard.

2.18 The Sun considers itself a family newspaper. Mr Murdoch made clear his view in an interview with the title ahead of the launch of The Sun on Sunday that the new Sunday edition of the paper would be “family orientated” and “ethical”.24 Indeed, in his evidence to the Inquiry, the current editor of The Sun, Dominic Mohan, expressed his firmly held belief that The Sun is a powerful “force for good ,”25 and cited the work undertaken by the paper to enable its poorest readers to afford holidays as well as its recent work in schools promoting science learning. The Sun also sees itself as a campaigning newspaper, championing causes it considers important to its readers26 such as the Help for Heroes campaign.27

2.19 Mr Murdoch described NoTW as:28

“a campaigning newspaper…. certainly it was interested in celebrities, just as the public is, and a much greater investment went into covering the weekend soccer….. Coverage of celebrities, yes. Salacious gossip? Meaning – I take gossip as meaning unfounded stories about celebrities: no. I certainly hope not.”

James Murdoch described the brand of NoTW as:29

“an investigative newspaper with exposes and the like, wasn’t only concerned with celebrities and salacious gossip, but also uncovering real wrongdoing, scandals, campaigning and so on and so forth.”

2.20 NI has described The Times as “renowned for its ability to deliver accurate, intelligent and engaging information”.30 Both The Times and The Sunday Times have a long and established a reputation for quality investigative journalism, particularly The Sunday Times’ Insight Team, which has been responsible for stories such as the exposure of the spy scandal relating to the MI6 agent Kim Philby, the scandal of Thalidomide, as well as more recent allegations of vote rigging at FIFA.

News International history: News Group

2.21 NoTW was purchased by Rupert Murdoch in January 1969. The Sun, which had been launched by the International Publishing Corporation (IPC) in 1964, was acquired by Mr Murdoch in October 1969. The two newspapers were published as sister titles from that date until the closure of NoTW on 10 July 2011. At the time of its acquisition The Sun was almost bankrupt. Changes to content, and in particular the introduction of a far more irreverent and informal style, as well as changes to editorial policy and production methods, led to a dramatic turn around in the newspaper’s fortunes.31 Within three years, The Sun newspaper was not only highly profitable, providing much of the necessary finance for further acquisitions elsewhere, but was successfully challenging the Daily Mirror as the UK’s best selling newspaper.

2.22 Mr Murdoch introduced a style and understanding of journalism that he had developed at the Adelaide News. In an otherwise staid newspaper market, the re-launched The Sun and NoTW were irreverent and anti-establishment. This new approach to tabloid journalism was well illustrated in the publication in NoTW of Christine Keeler’s memoir of the 1963 Profumo affair. Indeed, some commentators have suggested this was a, if not the, defining moment in the development of a journalistic ethos at what was to become NI.32 The Keeler article certainly boosted sales, although Mr Murdoch received much criticism from his competitors of reporting ‘old’ news, especially of such a nature.33

2.23 The Sun under Mr Murdoch set out to appeal to a broader cross-section of society. Innovations in content intended to appeal to a mass market included the introduction of television coverage, and the advent of the first Page 3 girl in 1970. This marked the first anniversary of the re-launched tabloid and quickly became a controversial trademark of the paper, albeit copied by its competitors. During this period, the circulation of The Sun increased from 1 million in 1969 to over 3.8 million in 1980, peaking at 4 million in 1978 under Sir Larry Lamb’s editorship.34

2.24 Mr Murdoch was not only responsible for the introduction of a new approach to tabloid journalism at both The Sun and NoTW, he also introduced important changes to methods of production to all his titles. Although these changes were criticised by some within the industry at the time and, indeed, led to a bitter and protracted dispute with both the print unions and the National Union of Journalists (NUJ), commentators have credited these changes, which have since been adopted by all newspapers, with ensuring the economic viability of the British newspaper industry.

2.25 NI’s move to Wapping and decision to face down the print unions, had strong support in Government. Indeed, throughout the strike in the mid-1980s, NI was able to maintain almost full production and distribution capabilities as well as a complement of leading journalists. The company was therefore content to allow the dispute to run its course. With many thousands of workers having gone without pay for over a year, the strike eventually collapsed on 5 February 1987.

2.26 It has been suggested that the defeat of the unions would not have been possible without the support of the Conservative Government of the time.35 Irrespective of any political support, the changes implemented by Mr Murdoch set a precedent: within two years of the conclusion of the strike, most of the national papers had followed NI’s lead, left Fleet Street, and changed their printing practices.

2.27 Although both The Sun and NI are conservative in outlook, the political loyalties of neither paper have been set in stone. Some commentators have argued that so influential has the tabloid become that it is able to decide the outcome of elections.36 Certainly, that was the clear inference of The Sun’s front page headline following the Conservative election victory in April 1992, “It was The Sun wot won it”.37

2.28 Although The Sun and NoTW backed the Labour Party in the 1997, 2001 and 2005 general elections, the relationship between the New Labour Government and the NI titles had grown increasingly strained. It is reported that ahead of the 2005 election, Mr Murdoch had said that Tony Blair “deserved one last chance”.38 In late September 2009, on the day of Gordon Brown’s keynote speech to the Labour Party Conference, The Sun announced that it would support the Conservative Party in the 2010 election. The detail of the relationship between Mr Murdoch and politicians, including how that influenced the editorial stance of his newspapers, is considered in detail in Part I

2.29 TheSun now has the largest circulation of any daily newspaper in the UK, selling approximately 2.7 million copies each day. The paper claims a readership of almost 9 million.39 NoTW, at its time of closure in July 2011 had a circulation of just under 2.7 million and represented 28% of the Sunday tabloid market.40

2.30 The first edition of The Sun on Sunday achieved sales of 3.2 million but since has dropped to a level of sales similar to that of NoTW before its closure, at 2.6 million.41

News International history: Times Newspapers Holdings Limited

2.31 TNHL was established in 1967 when the Thomson Corporation purchased The Times from the Astor family and merged it with The Sunday Times. The Times is the oldest of the major UK national newspapers and was first published in 1785. It has been published continuously ever since, save for a ten month period in the late 1970s.

2.32 Faced with escalating productions costs and a commercial model that was under increasing threat, the Thomson Organisation decided to put both titles up for sale at the end of 1980. NI reached an agreement with Thomson to acquire those papers. Under Section 58 of the Fair Trading Act 1973 any newspaper merger at the time required the consent of the Secretary of State for Trade. Further, and subject to two exceptions, the Secretary of State was prohibited from giving his consent to such a merger unless he had first received a report from the Monopolies and Mergers Commission (MMC).

2.33 The Thomson Organisation imposed deadlines beyond which they said they would no longer support The Times (14 March 1981) or The Sunday Times (8 March 1981). The then Secretary of State, John Biffen, told Parliament that this factor, taken together with the financial figures for the two newspapers, convinced him that neither title was economic as a going concern and that to require an MMC reference would risk the closure of both titles, the loss of 4,000 jobs and the possibility of the permanent closure of The Times.42 He therefore gave his consent for the merger to go ahead, but he also imposed eight conditions:43

“First, the newspapers are to be published as separate newspapers. Second, future disposals are to be subject to the consent of a majority of the independent national directors of Times Newspapers Holdings Ltd. Third, the number of these independent directors is to be increased from four to six and the appointment of any independent national directors in the future is not to be made without the approval of the existing independent national directors. Fourth, on editorial independence, the editors shall not be appointed or dismissed without the approval of the majority of the independent national directors. Fifth, the editor of each newspaper shall retain control over any political comment published in his newspaper and, in particular, shall not be subject to any restraint or inhibition in expressing opinion or in reporting news that might directly or indirectly conflict with the opinions or interests of any of the newspaper proprietors. Sixth, instructions to journalists shall be given only by the editor or those to whom he has delegated authority. Seventh, subject only to any annual budget for editorial space and expenditure the editor shall retain control over the appointment, disposition and dismissal of journalists on his newspaper and of all other content of his newspaper. Eighth, disputes between the editors and directors of the companies are to be settled by the independent national directors.”

2.34 Those conditions are included within the Articles of Association of Times Holdings Limited and still bind the company today.

2.35 The decision of the Secretary of State was controversial. The Labour MP, John Smith, called an emergency debate on the decision on the day that the Secretary of State’s consent was announced. The Opposition, and indeed some Government backbenchers,44 argued that the threat of closure was a device concocted by Thomson and colluded in by NI designed to force the Government’s hand. There were also allegations that the Prime Minister had influenced the Secretary of State’s decision as a favour to Rupert Murdoch. For example, Geoffrey Robertson MP said:45

“In his first major decision the Right Hon. Gentleman has failed to stand up to the Prime Minister. That is the reality. I shall examine the facts and show why later. This is a straightforward pay-off for services rendered by The Sun. If it is not, let us see the facts and figures to show that I am wrong.”

2.36 Despite this opposition the deal had the support of the editorial staff and the unions, and went ahead. The purchase gave NI more than a 25% share of daily newspaper circulation and something over 30% of the Sunday market.

2.37 Although The Times has a reputation for taking a generally conservative approach to matters of public policy and social issues, its support for political parties at general elections has varied. Indeed, on occasion The Times and The Sunday Times have backed different parties. Most recently, The Times supported the Labour Party in 1997, 2001 and 2005 and the Conservatives in 2010. By contrast, The Sunday Times supported the Conservative Party at each of those elections.46

2.38 In February 2012 The Times had a circulation of 397,549. Although this is the second highest broadsheet circulation, it is some way behind the Daily Telegraph, and accounted for only 4.3% of national daily newspaper circulation in that month. By contrast, its sister paper The Sunday Times had a circulation of 939,395 in February 2012, reflecting its different character. This is by some margin the highest national Sunday broadsheet circulation (the Sunday Telegraph has a circulation of just over 460,000), and gives The Sunday Times the fourth highest national Sunday circulation, accounting for nearly 8.5% of the national Sunday market.47

2.39 Unlike The Sun, The Times and The Sunday Times have put their online content behind paywalls. This approach is not usual for UK newspapers, and The Times has the smallest online audience of any of the major UK newspapers: as of March 2012 it was reported to have only 119,000 subscribers.48 This compares poorly to the Guardian’s website which attracts upwards of three million unique users each day and the Daily Mail website which receives in excess of 70 million hits each day.

News International governance structures

2.40 The NI Board now meets monthly to address issues of significance. The Inquiry was told that in October 2010 the Board included a News Corp representative and that a second would shortly be appointed.49 Subsequently, the Inquiry was informed that both Mr Murdoch and Janet Nova, Deputy Group General Counsel of News Corp, have stepped down from the NI board. Thomas Mockridge told the Inquiry that no NI executives sit on the News Corp Board:50

“I am satisfied that notwithstanding these changes to the board, the appropriate oversight of the News International business is being maintained both at the local division and group levels and the board of directors of NI Group Limited continues to play a key role in ensuring the appropriate corporate governance standards of the company and its subsidiaries.”

2.41 Mr Mockridge told the Inquiry the NI Board has undertaken a review of compliance since July 2011. He said:51

“... what we have sought to do is to update/refresh the whole range of compliance policies and in particular improve the communications of the compliance policies. My observation has been that even where an existing policy is completely thorough and appropriate, if it’s not well communicated, then it’s much more difficult to expect people to comply with it.”

2.42 The Inquiry has also been informed that the editors of The Times, The Sunday Times and The Sun will be required to attend these monthly NI Board meetings and report on performance and compliance.52 No information has been provided on past corporate governance practice at NI or governance procedures at NoTW.

2.43 The Corporate Audit Department of News Corp provides assurance on the effectiveness of operational and financial controls through audits carried out on the basis of an assessment of significant risks to News Corp. In 2012 such audits were planned at NI in relation to, inter alia, advertising revenue, circulation revenue, compliance with the UK Bribery Act and NI’s digital media operations.53

2.44 There is a separate Board for TNHL, which is covered by the undertakings given to the Secretary of State for Trade following the acquisition of the titles in 1981. The TNHL Board must comprise no more than 20 directors of whom at least six must be ‘Independent National Directors’. A majority of the Independent National Directors is required for the appointment and dismissal of the editors of either of the titles or the disposal by NI of the titles. The TNHL Board meets quarterly54 and the editors of The Times and The Sunday Times attend and are expected to account for editorial coverage to the Board.55 The Independent Directors meet regularly with the Editor of The Times both at board meetings of TNHL and separately to discuss any on-going issues at the paper,56 and with the Editor of The Sunday Times .57 There are separate boards for Times Newspapers, News Group Newspapers and NI Trading, which meet as required.58

News International’s financial results

2.45 NI is now only a small but still important part of News Corp’s global business.59 Although The Sun is highly profitable, the relative profitability of the group has been in decline for a number of years. News Group News posted pre-tax profits of £88.6m for the 2009/2010 financial year, as well as an increase in revenue from £639m to £654m.60

2.46 By contrast, The Times and The Sunday Times have run at a loss for a number of years and have not made a profit since 2001.61 However, the decline in revenues at TNHL appears to have been halted though not fully reversed. TNHL reported a pre-tax loss of £45m for the financial year 2009/2010 compared with a pre-tax loss of £87.7m for the 2008-2009 financial year.62

2.47 Despite the strong performance by NGN, NI recorded a pre-tax loss of £78.5m for 2009/2010, compared with a profit of £34.7m for the 2009/2009 financial year. Much of this loss was attributable to the costs of writing down a £45m loan made to its free title, The London Paper, after the closure of that title in September 2009.

2.48 Over the same period NI’s salary bill has been reduced from £11.7m to £8.8m. However, overall staff costs at NI have increased from £16.7m to £19.4m as a consequence of increased share-based payments and a rise in pension costs.63

News International editorial independence

2.49 The position on editorial independence differs across the NI titles. The Times and The Sunday Times are guaranteed editorial independence pursuant to the 1981 undertakings. By contrast, Mr Murdoch takes an active interest in the editorial direction of the NGN titles, though the position in relation to The Sun and NoTW was far from identical. He told the Inquiry that:64

“I never much interfere with the News of the World, I’m sorry to say,”

but that he would exercise editorial control on major issues, such as the support for parties at a general election or policy on Europe.65 In contrast, he said of The Sun:66

“if any politician wanted my opinions on major matters, they only had to read the editorials in the Sun.”

News International financial management

2.50 The News Corp Corporate Audit Department provides a check on operations, financial reporting and compliance.67 In particular this department’s audits cover the Editorial Commissioning System, Casual Management System (by which casual staff are paid), expenses system and NewsPeople.68 The accounts of NI, NGN and TNHL are audited by Ernst & Young.69 On account of its US listing, NI is required to comply with the financial certification requirements of the Sarbanes-Oxley Act 2002.70

2.51 The Editorial Finance Director is responsible for the accurate reporting of the editorial numbers. A Corporate Reporting Team and a Financial Accounting Team ensure that NI complies with the relevant accounting standards. A Taxation Team ensures that tax compliance is followed.71

2.52 Day to day legal and policy compliance is a matter for editors, delegated to deputy editors and senior sub editors.72 Financial matters are dealt with by the managing editors.73 Payments to third parties for editorial content must be authorised by the relevant desk head and managing editor, apart from in the case of NoTW where a desk head could alone authorise payments up to £2,000.74 Payments or annual entitlements of over £50,000 require authorisation from the Chief Financial Officer.75 Cash payments, without limit, can be made to third parties subject to prior approval by the managing editor and the editor or deputy editor.76 This has been strengthened since the introduction of the Bribery Act 2010, before which authorisation for cash payments was only required from the managing editor or deputy managing editor.77 In addition the journalist who requested the cash has to sign a book saying that they have had training in the Bribery Act and will comply with NI’s bribery policy.78

2.53 Expenses can be claimed through an online system, subject to authorisations from the Expense Administration Team and the Managing Editor’s office. Expenses where a receipt is not provided can be paid at the authoriser’s discretion.79

2.54 The Times rarely pays for stories, with the exception of book serialisation deals with publishers.80 The Sunday Times pays fees to external sources of information, including local news agencies and freelance journalists.81 The Sun makes payments to a range of external sources of information, including press agencies, tipsters and regular informants.82

News International policies and procedures

2.55 News Corp has a number of relevant policies that apply to its (and hence all NI) staff: Standards of Business Conduct, Global Anti-Bribery and Anti-Corruption Policy and the Record Retention, Policy.83 In addition there are a number of NI policies that apply to all NI staff, including: the PCC Editor’s Code, a Contracts Policy, an Approvals Authority Policy, an Expenses Policy, the Disciplinary and Dismissal Procedure, a Conflicts of Interest Policy and Data Protection Policies.84 Following the events at NoTW many of these policies are being or have been revised, leading to the addition of a Whistleblowing Policy and helpline,85 a Payment Policy86 which sets out the procedure which must be followed in order for journalists to pay sources for stories, a Workplace Conduct Policy87 and an NI Anti-Bribery policy which supplements the News Corp Global Anti-Bribery and Corruption policy.88

2.56 In addition NI has created a new role of Chief Compliance Officer, to be responsible for ensuring company-wide and title-wide compliance with the law and company policies89 and reporting directly to the CEO. The compliance officer has been tasked with reviewing and, where necessary updating, all NI policies, working closely with the in-house legal teams and the managing editors.90

2.57 All new employment contracts will require compliance with company policies and, in the case of reporters or journalists, with the PCC Code, and existing contracts will be revised to include these provisions where they are not already there,91 although the Inquiry was told that for journalists with The Times, The Sunday Times and The Sun compliance with the PCC code is already a contractual requirement.92 The Sunday Times is also drawing up formal understandings with freelancers to require them to abide by the law and the PCC Code.93

2.58 Until recently NI had no procedures governing the employment of private investigators. New rules are being introduced which make the engagement of a private investigator subject to approval by the Chief Executive.94 At The Sunday Times the rules on the use of subterfuge have been revised, with prior approval now required from the legal team, the editor and the managing editor,95 and discussions as well as any legal advice are to be documented.96 Historically, in the NoTW, private investigators were employed by the news desk to provide various services, including surveillance, supporting undercover investigations and provisions of data.97 Evidence has been provided that the news desk, rather than reporters, instructed these private investigators.98

News International management structures and processes

2.59 This section provides a brief overview of the management structures and day-to-day working practices at NI. The NI Executive Management Team (consisting of the heads of NI’s various divisions, the three editors and the CEO) meets weekly to discuss day to day business issues and to draw the CEO’s attention to issues of significance.99 At title level the three editors have ultimate responsibility for ensuring that their staff behave lawfully, professionally and ethically.100

2.60 At The Times, the heads of each section (e.g. business editor, head of news) report to the editor, who is assisted by the deputy editor, managing editor and executive editors. The vast majority of reporters are staff, and are on site daily, discussing news stories with their editors. Journalists are expected to discuss and explain lines of enquiry and methods of obtaining a story. There is an emphasis on transparency and continuous debate and discussion.101

2.61 At The Sunday Times the managing editor (News) is in overall charge of news coverage, and the news editor and foreign editor report to him. Difficult ethical or legal questions are discussed with the editor and the in-house legal team. The system operates on trust but with stringent control by the news desk, managing editor (News) and other departmental heads.102

2.62 At The Sun there is a daily news conference chaired by the editor at which proposed stories are discussed. The editor is responsible for ensuring that The Sun’s corporate governance system works and is adhered to. Day to day issues of corporate governance are delegated to the managing editor.103

News International incentives

2.63 Staff on The Sun are paid bonuses depending on personal performance, including the stories that the individual has produced.104 NoTW ran a monthly ‘merit’ scheme with awards being in the region of £500.105

News International oversight by readers

2.64 The Times has a ‘feedback editor’ who acts as an ombudsman, with a weekly column airing readers’ concerns.106 “You, the editor” invites readers to give their views on the previous day’s paper.107 At The Sunday Times the editor has appointed the associate editor as ombudsman to take an independent view of any complaint and recommend a correction and apology or defend the newspaper as appropriate.108

BSkyB: history and context

2.65 The detail of News Corp’s ownership of satellite television broadcaster BSkyB is dealt with in detail in the context of its recent bid for full ownership of BSkyB.109 However, at this stage I examine the early involvement of News Corp in satellite broadcasting in the UK.

2.66 NI acquired 65% of the struggling Satellite Television Ltd in 1984 for a nominal £1 and re- launched the company as the Sky Channel. The company continued to be loss making, losing £10m in 1987. Problems with the satellite technology meant that it was primarily a cable channel in the UK until 1989, when it moved to the newly launched Astra Satellite, based in Luxembourg, which made reception in the UK much easier, and its four channels were marketed primarily to the UK. Until 1990 it was the only satellite serving the UK.

2.67 The Independent Broadcasting Authority (IBA) awarded a DBS (Direct Broadcasting via Satellite) service licence to British Satellite Broadcasting (BSB) in late 1988. BSB was required by its licence to use a different technology to that then successfully in use by Sky, and was bedevilled by technical problems, not being able to launch until March 1990. The BBC had also proposed its own satellite service, going as far as signing a ‘heads of agreement’ on the construction of two satellites in March 1986, but this service never launched.110 This meant that the two satellite services being marketed to the UK ran on different technical standards and needed different dishes (and different receivers) so that they were placed in direct competition with each other for customers who would only be able to receive one service or the other.

2.68 In 1989 the Broadcasting Bill was introduced to Parliament, which contained provisions relating to the licensing of satellite services. The Bill placed a number of licence conditions (impartiality and accuracy of news; not offending against good taste or decency; not inciting crime or disorder; and not offending against public feeling) on BSB, but not on Sky.

2.69 During debate on the Bill amendments were proposed to extend cross media ownership restrictions to the holders of a domestic or non domestic satellite service.111 In practical terms this would have required NI to divest the Sky Channel, but might also have had an implication for other publishers who held stakes in BSB. These amendments were defeated and the Act became law without any cross media ownership provisions affecting the holders of satellite broadcast licences.

2.70 In November 1990, within days of the Broadcasting Act 1990 receiving Royal Assent but before the regulatory changes had taken effect, it was announced that BSB and Sky were going to merge. The Home Office was formally notified of the merger on 2 November 1990, with a formal public announcement being made by the two companies, and the merger taking place, on 3 November, resulting in the creation of BSkyB. At the time, the merger was covered by the Broadcasting Act 1981, under which BSB’s direct broadcasting satellite service was provided under a contract with the International Broadcasting Authority (IBA), the regulator at the time. Under the 1981 Act an IBA contract for satellite broadcasting could be ended or suspended by the IBA or the Secretary of State if a newspaper proprietor had an interest in a contractor and “the existence of those shareholdings has led, or is leading to results which are contrary to the public interest .” The IBA was not informed of the merger in advance of it taking place.112

2.71 Under the terms of BSB’s contract with the IBA it was obliged to get the approval of the regulator for any merger. That approval was not sought in advance. In the event this proved immaterial as the merged company then broadcast solely from the Astra satellite, thus removing the need for an IBA licence.113 The merger also took the newly formed company out of the full licensing regime that the 1990 Act would have imposed on BSB as a domestic satellite service.

2.72 For over a decade BSkyB provided the only satellite broadcasting service directed primarily at UK viewers. The service was available only with subscription, and with a combination of strong marketing and exclusive programming the proportion of households with Sky subscriptions grew from the extremely low levels in 1990 to nearly six million in 2002, and over ten million in 2011. The BBC moved to make its channels available free to air from satellite in 2003 but, as they were the only channels being broadcast from the satellite without encryption and therefore free to view, take up was limited. Over subsequent years ITV and Channel 5 joined the BBC in offering free to air satellite broadcasts, and Sky added a ‘freesat from Sky’ offer which allows consumers to take free to air satellite services from Sky. BSkyB now competes against both free to air digital terrestrial and satellite services and subscription based services via cable. Increasingly there is additional competition from on demand services provided over broadband.

2.73 BSkyB is now a significant part of News Corp’s direct satellite broadcasting business, which consists of the whole of SKY Italia, which now has 5 million subscribers, 39.14% of BSkyB, and significant holdings in Sky Deutschland; TATA SKY in Asia and FOXTEL in Australia and New ealand. Direct Satellite broadcasting is a relatively small part of News Corp’s activities, contributing only 11.5% of revenues in 2010. Financially BSkyB went from making a loss of over £700m in 1991 to delivering revenue of over £6.5 billion and profit of £1.073 billion in 2011.114 BSkyB is a Plc, traded on the London Stock Exchange, and News Corp owns 39.14% of the shares, which for practical purposes is a controlling shareholding. As of 30 September 2012, just over 10.5m subscribers held a subscription with BSkyB.115

BSkyB governance

2.74 The BSkyB Board consists of 14 Directors. The Chief Executive and Chief Financial Officer are the only executive Directors on the Board. There are nine independent non-executives, including the Chairman, three non-execs from News Corp and the Chief Executive of NI.116

2.75 James Murdoch was CEO of BSkyB from 2003 to 2007, then becoming non-executive Chairman. He stepped down as Chairman on 3 April 2012, saying: “As attention continues to be paid to past events at News International, I am determined that the interests of BSkyB should not be undermined by matters outside the scope of this company. I am aware that my role as Chairman could become a lightening rod for BSkyB and I believe that my resignation will help ensure that there is no false conflation with events at a separate organisation.”117 He retains a non-executive Director seat on the BSkyB Board.

Sky News

2.76 Through its Sky News subsidiary, BskyB is both a broadcaster and provider of broadcast news content. Sky News broadcasts continuous rolling news, it is also a major provider of news services to commercial radio stations and has contracts to provide news content to Channel 4 and Channel 5.118 Like all other broadcast news providers, Sky News is bound by the terms of the Broadcasting Code.

2.77 According to Ofcom, Sky News had in October 2010 an average weekly reach of some 24% of the wholesale news market, equivalent to 11.7m people per week, and 9.9% of the retail news market, or some 5m people per week.119 Ofcom has estimated that Sky News’ share of national and international news television viewing is around 6% of the news market.120 This is less than the 70% market share enjoyed by the BBC and the 18% by ITV.121 Sky News’ share of the radio market is, in comparison, much larger. In October 2010 it had an average weekly reach of 33.4m people.122

2.78 The Inquiry has heard some evidence on the corporate governance procedures operated at Sky News. This was provided by John Ryley, Head of News at Sky News. Mr Ryley was invited to give evidence to the Inquiry in relation to the unauthorised access of private email accounts by the journalist Gerard Tubbs in relation to two stories broadcast by Sky News in 2008 and 2010.123

2.79 Mr Ryley described in some detail the informal, but thorough processes in place at Sky News, and revealed that discussions around whether to pursue each story as well as decisions to authorise the unauthorised access of the email accounts in question were had and made, together with the taking of appropriate legal advice, at senior editorial levels.124

2.80 Mr Ryley also said that as a consequence of the broadcast of the two stories in question, Sky News would look to introduce a formal process requiring, should the situation arise, formal written authorisation to be sought either from the head of news or the appropriate editor designate.125

3. Associated newspapers Ltd

History

3.1 The Daily Mail was launched in 1896 by Harold and Alfred Harmsworth. The company was incorporated as the Daily Mail & General Trust (DMGT) in 1922 and listed on the London stock exchange in 1933. Alfred Harmsworth (later Viscount Northcliffe) also founded the Daily Mirror in 1903 and took over the Observer in 1905, and The Times and The Sunday Times in 1908. Alfred Harmsworth died in 1922 without an heir, and control of DMGT passed to Harold Harmsworth, 1 st Viscount Rothermere. The Times was sold to Viscount Astor in 1922. Viscount Rothermere disposed of his interest in the Daily Mirror in 1939. The Harmsworth family have remained owners of a substantial part of DMGT, and have continuously held the post of Chairman since the company was founded.

3.2 Viscount Rothermere, the current owner of DMGT has given evidence to the Inquiry explaining the ethos and nature of the Mail Newspaper Group. Viscount Rothermere told the Inquiry that he firmly believes in taking “pride in our products and services.”126 He has said that DMGT has been built on his personal and family values, and that these values resonate and are replicated across the Mail group of newspapers.127 Viscount Rothermere also told the Inquiry that the popularity of the Daily Mail resides with the broad spectrum of news content that is offered by the title – it provides something for everyone. In their initial written submission to the Inquiry, Associated News further explained this appeal in their description of the Daily Mail:128

“…in touch with the hearts and minds of ‘Middle England’. It reflects their concerns, hopes and lifestyle. Top of the agenda is reporting the news and asking the tough questions. With its campaigning stance, it is not afraid to expose the wrongs and shortcomings of people in power and with the vocal backing of its 5 million readers can be an effective force for change.”

3.3 The growth of the MailOnline, now the most popular newspaper website in the world, is also testament to the enduring appeal of the breadth of content, and in particular, celebrity news, offered by the Mail newspapers. Viscount Rothermere has described the MailOnline as having made a “global footprint.”129

3.4 The Mail has traditionally been politically conservative, supporting the Conservative Party at every general election since 1945.130 When giving evidence to the Inquiry, the current editor-in-chief, Paul Dacre, has said that the Daily Mail propounds the virtues of family life, of traditional matrimony and traditional values.131

The Mail Group today

3.5 DMGT today operates in over forty countries with a substantial portfolio of media and information companies providing content, information, analytics and events for businesses and consumers. In 2010 DMGT’s revenue was nearly £2bn, with operating profit for the year running at £320m. DMGT employs 12,000 people and only just over a quarter of its profits come from its consumer facing businesses. DMGT comprises five divisions, only one of which, A&N Media, is involved with publishing newspapers. A&N Media includes Associated Newspapers, which publishes UK national newspapers.

3.6 Associated Newspapers is highly profitable and employs over 4,300 staff. In 2010, it showed a substantial increase in profits, despite a small percentage fall in revenues.132 In the 2010/2011 financial year, Associated Newspapers had revenues of £850m, with an operating profit of £95m. This makes Associated Newspapers by some way the most successful newspaper concern in the UK in purely cash terms, to say nothing of the global reach of its online content.

3.7 Northcliffe Media publishes ninety publications in the UK, including thirteen paid-for daily titles, two free daily titles, twenty-five paid-for weeklies, two weekly classified titles, eighteen monthly magazines and twenty-nine free weekly newspapers, in addition to a network of local websites that attracted five million unique users in September 2011. Northcliffe Media employs 2,531 people and through deduction from the Annual Report had in 2011 revenues of £248m and an operating loss of £2m.

3.8 Associated Newspapers publishes the Daily Mail, the Mail on Sunday, the Metro and MailOnline. The Daily Mail has a circulation of just over 2m, which is the second highest national title circulation (after The Sun at 2.7m), and accounted for some 21% of national daily newspaper circulation in February 2012.133 The Metro, launched in 1999, is a free daily newspaper distributed in all major urban centres in the UK. It has a circulation of 1.38m and readership of 3.4m.134 The Mail on Sunday had a circulation of 1.8m in February 2012.135 Following the demise of News of the World this was the highest Sunday circulation, but was topped by the Sun on Sunday at its launch in February 2012 with a circulation of just over 3.2m. The February 2012 circulation figures for the Mail on Sunday account for just under 17% of national Sunday circulation.

3.9 The picture would be incomplete without some reference to the phenomenal growth of the MailOnline. The MailOnline is the most popular UK newspaper website and the most visited newspaper site in the world. The website receives on average a daily viewing audience of 5.6m people, of which 2.2m are readers in the UK and 1.7m in the USA.136 The content produced for the MailOnline is edited separately to that of the Daily Mail and the Mail on Sunday. However, the MailOnline reproduces much of the content published in the printed titles, in addition to its own, often US focused content.137

Governance structures

3.10 Associated News Limited publishes the Daily Mail, the Mail on Sunday, the Metro and MailOnline. Associated News Limited is part of A&N Media, which is, itself, part of DMGT, a publicly listed company quoted on the UK Stock Exchange.138 Our focus here is on A&N Media, and within that on Associated Newspapers. A&N Media also includes Northcliffe Media.

Associated News Boards

3.11 The DMGT Board comprises nine executive directors and seven non-executives. The Chair and Chief Executive of A&N Media and the editor-in-chief of Associated Newspapers sit on the DMGT Board. The DMGT Risk Committee has responsibility for all group risk, including risk arising from editorial matters, including where appropriate recommending changes to existing practices.139 In addition the Information Security Committee includes within its remit responsibility for data protection in the company, including third party data held by the company.140

Associated News editorial independence

3.12 The DMGT Board are not involved in the editorial process, nor do they have any proprietorial influence on published content. The editors of Associated Newspapers have complete editorial independence over the content published in individual DMGT titles. The editors of Associated Newspapers report to the Chair of DMGT and the editor-in-chief, not to the commercial management of the organisation.141 The exception to this is the Editor of the MailOnline, who, in addition to reporting to the editor-in-chief on editorial issues, reports also to the Managing Director of Associated Newspapers on business matters.142

3.13 Mr Dacre, has given evidence as to the extent of this editorial freedom, and stressed that:143

“…just as I am given the freedom to edit by our management, I leave the individual editors of the titles – it can’t be any other way. You can’t edit by remote control.”

3.14 Mr Dacre has also suggested that the editorial freedom that he is granted as editor-in-chief of the Mail Group of newspaper by the DMGT Board is not necessarily something extended to newspaper editors working for other concerns. He has told the Inquiry that:144

“…I have turned down editorships of The Times and The Telegraph. One reason I did so is that at the Mail I enjoy total freedom from proprietorial and managerial interference, a freedom that is not necessarily found in other newspaper groups.”

3.15 To this extent, he has suggested that the personal views of Mr Murdoch have influenced editorial decision making at the NI titles. Mr Dacre cited that newspaper group’s coverage of the second Iraq conflict, which provided support for the Labour Government’s decision to go to war in Iraq. He told the Inquiry his view that it would have been difficult, if not impossible, for the Labour Government to have proceeded with this decision, without the support received through Mr Murdoch’s newspapers.145

Associated News financial management

3.16 New systems of approving and recording payments to third parties were established at Associated Newspapers following the introduction of the Bribery Act 2010. These require: prior approval from department heads; documentation of the payment; an explanation of why the payment is necessary, including any public interest issue where appropriate; and where it involves an employee acting against their employer, the information presented must be assessed as well as justified. This system applies to freelance journalists working at Associated Newspapers when they need to make payments to third parties in pursuit of a story for the company.146

3.17 In addition to normal relationships with news agencies, fees to third parties are sometimes paid. These could be fees to freelancers (either for information or for journalism), fees to the public for information, fees to the public for the right to tell their story, or fees to the public for pictures.147

3.18 Payments can be made in cash in a limited number of circumstances, and can be to anonymous sources. Each desk will have delegated authority to approve payments up to an agreed level. Above that level, the approval of the editor or deputy editor is required. Where larger sums are involved, for example in regard to ‘buy-ups’, there will normally be senior editorial discussion and the payments would be subject to contractual documentation.148

Associated News policies and procedures

3.19 Compliance with the Editors’ Code of Practice is a contractual requirement for all journalists employed at Associated News.149 Additionally, it has been a contractual requirement for all ANL journalists, and any freelance journalists working for ANL, to comply with the Data Protection Act. Any complaints to the PCC, and guidance from them, is reflected in legal notices circulated to editorial staff and relevant legal advisors.150 The editor-in-chief’s policy is that:151

“…one of the most important things… a newspaper can do is to employ first rate reporters, writers and subs who are more concerned than anybody to ensure that their journalism is of the highest professional standards.”

3.20 Mr Dacre explained to the Inquiry that clear lines of communication exist between staff, department heads and the managing editors. In this respect, the company ensures that presence of the managing editors on the newsroom floor is constant. Mr Dacre said that:152

“If, for example, a reporter was asked to do something he or she was unhappy about, or a head of department was unhappy about signing off payment, there is no reason why they would not feel able to discuss this with the managing editors…”
ANL also has a Data Protection Policy,153 and a staff handbook which includes a whistleblowers’ procedure and a ‘speak up’ policy.154

3.21 Compliance with the Editors’ Code of Practice is a particular responsibility of managing editors, together with company’s in-house lawyers, who are not involved in editorial decision making and who staff should approach with any concerns related to compliance with the Code. managing editors ensure that all staff are kept aware of any changes to the Code and also have copies of the latest version. PCC training and refresher sessions are also used to ensure compliance with the Code.155 The Inquiry has been told that training is a key part of ANL’s approach to embedding ethics and compliance with the code within the organisation across the range of responsibilities. Disciplinary action has been taken by ANL against journalists on occasion in respect of breaches of the code.156

3.22 It is made clear to all journalists working for ANL that failure to abide by the Editors’ Code of Practice will have serious consequences for them, the editor and the company.157 Examples of letters to staff and instructions from the managing editors, legal warnings from the legal department and disciplinary action have been disclosed to the Inquiry.158

3.23 Since April 2007 there has been an outright ban on ANL staff using private investigators and search agencies.159 As well as informing all ANL Journalists of the ban, the Inquiry has been told that ANL have also written to every agency previously used by ANL employees stating that any further use of their services was unauthorised and would not be paid for by the company. This has only been breached once, which resulted in the dismissal of the staff member responsible.160 ANL retains three commercial relationships with information search services in relation to genealogy, business information and tracing, each of which the company is satisfied complies with DPA requirements.161

3.24 Any staff who believe they have access to, or want to access, material in breach of the DPA are required to contact the editor or deputy editor and where there are compelling public interest reasons to proceed, those reasons should be recorded in writing.162

3.25 Associated News has an Anti-Bribery and Corruption policy, a policy on Working with Third Parties and a policy on Gifts and Hospitality. Introduction of new procedures relating to these policies were undertaken in light of the introduction of the Bribery Act 2010. All staff must comply with these policies and promptly report any concerns or violations.163

Associated News management structures and processes

3.26 Editorial departments at Associated Newspapers are hierarchical organisations.164 Reporters make the initial judgment on the quality and source of the information they are dealing with, and whether it is publishable with regard to issues of libel, privacy, data protection and taste. If they have doubts about the accuracy of the information or how it was obtained they have to discuss it with their head of department, who in turn must discuss it with senior editorial executives, who may make other investigations or consult the deputy editor or other senior executives.165 Sub-editors are encouraged to check facts where it is appropriate to do so.166 The editor will in turn scrutinise their decisions and may make his own enquiries if he has any reason to doubt the accuracy of the story or the methods used to obtain the story.167

3.27 The current editor of the MailOnline, Martin Clarke, told the Inquiry that he applies the same standards of reporting and appropriate checks involved in the publication of stories on the website as the company’s print journalists would do.168

3.28 Editors are assisted in any such decision making by the managing editors. It is the role of the managing editors to investigate complaints and alleged breaches of the Editors’ Code of Practice if, and when, they arise, while at the same time educating journalists about any new developments to or requirements of the Code, and must be proactive in ensuring that the Code is not breached.169 The Inquiry has been told that Managing Editors are a constant presence on the editorial floor, independent of other departments and not involved in editorial decision-making, save where they are seeking to ensure that a legal or PCC warning is noted.170 Paul Dacre has made clear that one of their core functions is to:171

“…ensure that our journalists understand and comply with the highest professional standards.”

Associated News incentives

3.29 The editor-in-chief and other ANL editors may receive share options as part of their remuneration but these are tied to DMGT’s overall financial performance, and not editorial performance.172 Mr Dacre, told the Inquiry that he also received a “one-off lifetime bonus” which was taken in 2010.173

4. Northern and shell Media group Ltd

4.1 Northern and Shell is a privately owned company, founded and owned by Richard Desmond. The Daily Express Group was acquired by Mr Desmond on 22 November 2000.174 In its formal submission to the Inquiry, Northern and Shell have described the Daily Express as “the world’s greatest newspaper”,175 and that it:176

“…covers world and domestic events in depth and with style, it leads opinions and tell the truth intelligently, fearlessly and with attitude. It engages the modern reader with a unique mix of news, features, sport, health, money matters, columnists and entertainment… [it] spearhead[s] the values of middle Britain.”

4.2 Perhaps more prosaically, Mr Desmond has told the Inquiry that his only interest in acquiring the Express Group was the commercial opportunity that it offered.177 Echoing the importance of the commercial interests of the Express Group’s owner, the current editor of the Daily Express, Hugh Whittow, has told the Inquiry that his priority for the title is to keep it: “buoyant, popular and profitable, and hopefully keep and encourage more readers.”178

4.3 The Daily Express has traditionally supported the Conservative Party. Although the paper backed the Labour Party in the 2001 general election under the editorship of Rosie Boycott, the paper returned its support to the Conservative Party ahead of the 2005 general election.179 The then editor, Peter Hill, explained the reason for that change in allegiance to the Inquiry:180

“…the entire history of the Daily Express had been that of a right-of-centre newspaper. It has an enormous constituency of readers who supported that view, and I felt that it had been a huge mistake to move the newspaper to support the Labour Party, which had been done by previous editors and administrations, and it had, in fact, cost the newspaper an enormous number of readers who had abandoned it in despair.”

History

4.4 The Daily Express was founded by Arthur Pearson in 1900. In 1916 the newspaper was purchased by Max Aitken, later Lord Beaverbrook. Beaverbrook was unashamed about the political use he made of his newspapers. In this respect the Beaverbrook Foundation said:181

“it will be for his role as a pioneer of newspapers and for his ability to form public opinion that Beaverbrook will be ultimately remembered.”

4.5 Under Beaverbrook’s ownership the Daily Express became one of the most popular daily newspapers in the UK. Its circulation grew from 2.33m in 1938 to 4.3m in 1960.182 However, its circulation fell after Lord Beaverbrook’s death in 1964 and in 1977 the Daily Express was bought by the construction company Trafalgar House. In 1978 Trafalgar House launched the Daily Star, initially circulated only in the North and the Midlands. In 1982 Trafalgar House incorporated its newspaper publishing interests into a new company, Fleet Holdings, which was purchased by United Newspapers in 1985. In 2000, Express Newspapers, which at the point included the Daily Express, the Daily Star and the Sunday Express, was purchased by Northern and Shell, a company owned by Richard Desmond.

4.6 The Northern & Shell Media Group was founded in December 1974 by Richard Desmond, who continues to own it.183 The group began publishing music magazines and expanded into a wider range of magazines as well as into advertising and insurance. The group acquired Express Newspapers in November 2000 and Channel 5 in July 2010.184 The Northern & Shell Media Group currently comprises newspapers (the Daily and Sunday Express and the Daily Star and Daily Star Sunday), printing and distribution, magazines (OK!, New! and Star), Television (Channel 5 and a number of subscription and pay per view channels) and digital media (a stake in the internet television service, YouView, on demand video, websites of its print publications and other web services).185

4.7 In 2010 Northern and Shell Media Group had a turnover of £496.3m, with operating profit of £36m.186 Group turnover in 2010 from publishing and printing (newspapers and magazines) was £347m, with operating profit of £43.7m. The circulation of the Daily Express in February 2012 stood at 577,543, the sixth highest circulation for a national newspaper. Although this is just below the circulation of the Daily Telegraph (on 578,774), the Express has a significantly smaller readership than The Sun, Daily Mail, and Daily Mirror and fractionally less than its sister title, the Daily Star, which has the fourth highest circulation at 617,082. This gives the Daily Express and the Daily Star 6.3% and 6.8% of national daily newspaper circulation respectively, giving N&S Group a 13.1% share of national daily newspaper circulation. In February 2012 the circulation of the Daily Star Sunday and the Sunday Express was 599,078 and 567,800 respectively, which equates to 5.4% and 5.1% of the national share, and accounts for some 10.5% of national Sunday newspaper circulation.187

Governance structures

Northern and Shell boards

4.8 The Board consists of five Executive Directors including the Group Editorial Director, who assumes the role of Board Director, in charge of the creative functions of the organisation.188 The Board does not have any members who are the editors of the Northern and Shell titles.

4.9 The Board has the responsibility for the administration and business functions of Northern and Shell. In January 2011, it took the decision to withdraw Express Newspapers from the Press Complaints Commission (PCC).189

Northern and Shell editorial independence

4.10 The Inquiry has been told that the members of the Northern and Shell Board has no influence over the editorial content carried by the Express Newspaper titles. Mr Desmond has further told the Inquiry that individual editors are responsible for determining the tone of the newspapers they manage and have complete independence in terms of the content they publish.190 He has said that Editors:191

“…decide the stories that go in the papers and leave the directors and the administration side of the company to look after the business issues.”

4.11 The decision made by the former Editor of the Daily Express, Peter Hill, to support the Conservative Party ahead of the 2005 general election, was taken with the approval of the Board, although Mr Hill emphasised in evidence that the decision was ultimately his. He has explained:192

“It had qualified support, because the chairman, Mr Desmond, was a strong supporter of Mr Blair, who was then the Prime Minister, and he was not really a -- he was not a supporter of the Conservative Party, but he accepted that this was the appropriate thing to do.”

4.12 Mr Desmond also stressed the independence of the editor in reaching that decision, and mused as to whether Mr Hill’s decision might have impacted adversely on his relationship with the then Prime Minister, Tony Blair. He noted that:193

“…at the end of the day Peter Hill runs the editorial of the paper and that was the decision that he made.”

Northern and Shell financial governance

4.13 Corporate Governance at the Northern and Shell is primarily achieved through financial control and, particularly, the imposition of strict budgeting and financial oversight. Following the purchase of Express Newspapers, Northern and Shell implemented new systems in November 2000 intended to effect more effective control of expenses and invoices. Any expenses which exceed £5,000 must be signed off by a director at the group.194 The Managing Director samples payments to ensure they are appropriate and approves all editorial expenses claims.195 Cash payments are rarely used but are handled as staff expenses, which require approval by the relevant editor and managing editor.

Northern and Shell policies and procedures

4.14 Express Newspapers has a staff handbook which before 2001 was given to all staff and which is still available to staff on request.196 That handbook included the Editors’ Code of Practice and stated that editors and journalists must comply with it.197 Gareth Morgan, editor of the Star on Sunday, told the Inquiry that he has sought to ensure that hard copies of the Editors’ Code of Practice are distributed throughout his newsroom, and that this is done each time the Code is revised.198 The Northern and Shell staff handbook also includes a requirement that employees should comply with any company policies in force in this regard. It also includes a requirement that staff should seek to minimise the risk of expensive and damaging legal action.199

4.15 Although Northern and Shell is not a member of the PCC, the legal team expect to work in accordance with the standards set down in the Editors’ Code of Practice.200 Rather than responding to complaints made by members of the public or by affected parties through the PCC, instead Northern and Shell has established a Committee, comprising all the editors, the Group Editorial Director and the legal department, which sits on an ad hoc basis to look at any complaints received relating to the company’s publications.201

4.16 At present, there are no specific documents setting out the policies around anti-bribery or information gathering. Northern and Shell are in the process of issuing an anti-bribery and corruption policy following the enactment of the Bribery Act 2010.202

4.17 There are no rules on the employment of private investigators and search agents.203 The absence of any internal system for monitoring the use of search agencies has allowed some journalists to maximise the use of these services, without oversight through the legal department of Express Newspapers, or the editors of the Express titles. In this regard, Nicole Patterson, Head of Legal at Express Newspapers informed the Inquiry that:204

“…I can’t say as far as we were aware because until we started having a look at this, I didn’t even know that we used these search agencies.”

4.18 DawnNeesom, the current editor of the Daily Star, told the Inquiry that it was the investigations of Express Newspaper’s legal department into unusually large payments made in expenses claims, which revealed the extent of the Daily Star’s use of external search agencies. Ms Neesom said that as editor of the title she should have been made aware sooner that these practices had been taking place but was not.205 Ms Neesom explained that a specific policy in relation to the use of external providers of information did not exist at the Daily Star. The expectation now is that her newsroom operates within the limits of the Editors’ Code of Practice;206 the Northern and Shell staff handbook, and the financial systems set in place by the Board.207

4.19 Mr Whittow, also told the Inquiry that he was unaware of the use of search agencies by his journalists. He said that he received the same assurances as Ms Neesom. Similarly, he assumed that any use of the search agencies would have been conducted “within the confines of the law.”208 In contrast, the use of search agencies at the Daily Star Sunday, was undertaken with the knowledge of the editor. Mr Morgan, told the Inquiry that payments to search agencies are authorised through the Assistant News Editor, Jonathan Corke. Mr Morgan told the Inquiry that he:209

“…speak[s] to Mr Corke on a regular basis to make sure that if we are instructing a search agency, we are doing the right thing.”

4.20 The Inquiry has not heard any evidence to suggest that the Express Newspaper titles have implemented a formal whistle-blowing policy. Instead, Ms Neesom told the Inquiry that she operates an ‘open-door policy’ for her staff at the Daily Star, but was unable to differentiate between that process and an official policy for her employees. She told that Inquiry that journalists:210

“…can go to human resources. We don’t – I’ve never had a whistle-blowing experience, to be honest with you.”

Northern and Shell management structures and processes

4.21 The editor of each Northern and Shell title is responsible for the staff who work on that title.211 Journalists report to their head of department, who in turn reports to the deputy editor, who reports to the editor.212 The news and pictures’ desk, and individual reporters, have responsibility for verifying sources of information for their stories.213 Ms Patterson told the Inquiry that:214

“…I expect that when I’m presented with a story or some copy for legalling that the journalist will have done their job and that those facts will be correct, and if there is a legal problem with any of them, then I ask them, “where did it come from? How did it come about?”

4.22 Editors have a responsibility to ensure that the policies for lawful, professional and ethical conduct are adhered to in practice.215 The Inquiry has been told that editors at the group check throughout the day on all stories and pictures that are being printed.216 Sources for stories are discussed at editorial meetings which take place throughout the day, at which unusual articles and sources of information for those articles will be discussed.217

5. Trinity Mirror plc

5.1 Trinity Mirror describes the Daily Mirror as: “…a unique balance of real news, real entertainment and sport” and says that it’s core values are “compassion, conviction and courage”.218 Since the 1930s the Mirror has been a left-wing newspaper, and has supported the Labour party at every general election since 1945.219 Richard Wallace, editor of the Daily Mirror at the time he gave his evidence, said that the fact that he had met more often with Labour leaders than with the Conservative leader is a reflection of the paper’s political stance.220

5.2 Lloyd Embley, then the editor of the Daily Mirror’s sister title, the People, and now the editor of the Daily Mirror, described the People as providing:221

“…a combination of news, showbusiness and celebrities, football coverage and real- life stories.”
Mr Embley has said that the People, provides a unique focus on real-life stories. The title even publishes a supplementary magazine given over to such stories.222

5.3 Despite the historic support of the Mirror Group for the Labour party, Mr Embley has shifted the political allegiance of the People. It is now politically independent. Mr Embley has told the Inquiry that this was a personal decision, linked to the wider re-launch of the title, following his promotion to the position of editor in May 2008.223 Mr Embley stressed the importance of the People’s independent position, and explained to the Inquiry that:224

“My move to political independence, I think, says quite a lot about where I stand on – my view is that I represent and my paper represents the views of its readers, and my view on why I moved it to be politically independent is because I think politics has changed so much and the parties are so closely aligned on so many policy issues that it seems wrong to me just to follow one party. I felt it enable me to stand up for my readers best.”

5.4 The Trinity Mirror titles are also campaigning newspapers, and routinely run campaigns on issues they understand to be of importance to the demographic of their readership.225 The People has campaigned on the issue of fuel poverty, working with the industry to provide free energy saving devices and raising awareness to rising energy costs.226 The Sunday Mirror have led a number of military campaigns, raising money for former servicemen, highlighting the need for improved aftercare offered to troops returning from service.227 Other campaigns have included the Daily Mirror’s “Honour the Brave” and the successful “Pride of Britain Awards”.228 Mr Wallace told the Inquiry that the Daily Mirror campaigns very much reflect the title’s values and political stance, representing the interests of “ordinary people”.229

History

5.5 The Daily Mirror was founded by Alfred Harmsworth, Viscount Northcliffe, in 1903 as a periodical for ladies. The paper left the Harmsworth stable when it was sold in 1922 to Viscount Astor after Viscount Northcliffe’s death. During the 1930s, the Mirror developed a strong focus on working class issues. By 1939 it sold 1.4m copies a day. Its popularity continued to grow and by the 1960s it was the most popular of the national dailies, selling over 6m copies a day. In June 1953 the Daily Mirror broke all records selling 7m copies on the day of the Coronation.

5.6 In 1963 the Mirror Group together with three magazine publishers formed the International Publishing Corporation (IPC).230 In 1960 the Mirror Group acquired the failing Daily Herald, and re-launched it in 1964 as a mid-market paper called The Sun, which was then sold to NI in 1969. In 1970 the IPC was taken over by Reed International Limited. In 1984, Pergamon Holdings, a company owned by Robert Maxwell, acquired the Daily Mirror from Reed and it was re-listed as Mirror Group in 1991 following the death of Mr Maxwell that year. Trinity was formed in 1985 when the Liverpool Daily Echo separated from its holding company. Trinity grew rapidly through the acquisition of regional titles and in 1999 Trinity and the Mirror Group merged to form Trinity Mirror, the biggest newspaper publisher in the UK.231

5.7 Trinity Mirror is still one of the UK’s largest newspaper publishers with a portfolio including five national newspapers, over 130 regional newspapers and more than 500 digital products. In 2010 Trinity Mirror had revenue of £761.5m and operating profit of £123.3m.232 The Group employs over 6,500 people in more than 60 locations across the UK, including nine print sites. The Group has two trading divisions: Regionals and Nationals. The Nationals contribute something over half of Trinity Mirror’s revenues and profits, with revenue in 2010 of £430.3m and operating profits of £86.1m compared to 2010 revenue from the Regionals division of £331.2m, with an operating profit of £51.7m.

5.8 Trinity Mirror’s national titles include two daily titles: the Daily Mirror and the Daily Record; and three Sunday titles: the Sunday Mirror, the People and the Sunday Mail (the sister paper to the Daily Record). In February 2012 the Daily Mirror had a circulation of 1.102m,233 or just under 12% of national daily circulation. The Daily Record had a circulation of 291,825, which puts it at just over 3% of national circulation, meaning that the Mirror Group titles together account for around 15% of national circulation. The Sunday Mirror, the People and the Sunday Mail in February 2011 had circulations of 1,594,293, 701,246 and 376,898 respectively, with 14.4%, 6.3% and 3.4% of national Sunday circulation respectively, with Mirror Group titles accounting for just over 24% of all national Sunday circulation, including the third and fifth most popular national Sunday titles.234

Governance structures

5.9 Trinity Mirror is a public company listed on the London Stock Exchange.

Trinity Mirror boards

5.10 The Board consists of eight members, of whom the Chair and four members are non- executives. The Executive Directors are the Chief Executive, the Finance Director and the Company Secretary.235 Risk management is handled through the Audit and Risk Committee and risk maps, with around 70 senior personnel required each year to certify that they are properly identifying and reporting risk.236 The Inquiry has been told that risks tracked by the Risk Committee include ‘catastrophic editorial error’.237 Day to day corporate governance is managed through the Executive Committee, which includes the three executive directors and the Managing Directors of the Nationals and Regionals Divisions.238

5.11 Within the Trinity Mirror’s overall strategy for the management of risk, the editor is responsible for identifying risks and making the best judgments associated with that risk. In- house lawyers are also in place at titles, and are responsible for providing advice to the editor in relation to publishing articles in compliance with the Code.239 The editor will report to the Managing Director (of either Nationals or Regionals), who in turn report to the Board, and the Chief Executive.240

Trinity Mirror editorial independence

5.12 The editors of the Daily Mirror, the Sunday Mirror and the People are appointed by the Board of Trinity Mirror, which has the power to remove them.241 The final decision on what is published in a title belongs to the editor of that title, and is without influence from the Board or shareholders of Trinity Mirror.242

Trinity Mirror financial governance

5.13 Financial authority is delegated within strict limits, dependent on seniority, and within budget categories.243 No one is authorised to approve payments that would breach any of Trinity Mirror’s policies. Trinity Mirror has a strict policy against all manifestations of fraud and dishonesty.244 The Fraud Policy states that Trinity Mirror will seek to recover all associated costs from the individual responsible for a fraud and makes clear that such action will lead to potential disciplinary processes, and might lead to the involvement of the police.245 Trinity Mirror policies makes clear that the system used for paying expenses should not be used for payment for editorial content, which is instead registered as a payment for contributions.246 Expenses must be approved by someone other than the claimant with an appropriate authority level.247 If expenses relate to entertainment of a third party then only the editor can authorise the third party remaining anonymous on the record of the expenses.248

5.14 Each title has a budget for contributions, and MGN has 68,000 contribution accounts of which 19,000 have had at least one transaction processed since 2005.249 Payments under the contributions system are made direct to the bank accounts of the recipients. All payments must be appropriately authorised and new accounts cannot be set up by the authoriser.250 Cash payments can be made, but over a certain limit they must be approved by an editor or deputy editor and the approver must know to whom the payment is going. The request for the cash payment must be approved by a senior in-house legal advisor and the journalist must provide written receipts for the amounts claimed.251

Trinity Mirror policies and procedures

5.15 Trinity Mirror has a policy on Standards of Business Conduct with which all staff must comply.252 There is also a Code of Conduct policy. Breach of either is grounds for disciplinary action.253 The PCC Editors’ Code of Practice is incorporated into staff contracts.254 Trinity Mirror has a fraud policy and a whistle-blowers’ charter in place,255 which covers fraud and any instance of malpractice.256 Trinity Mirror also has a Dignity at Work Policy which covers bullying and victimisation, as well as an equal opportunities policy.257

5.16 The Mirror Group has used private investigators but since 2011 have introduced a new policy to halt such use.258 Trinity Mirror has also re-issued to staff the organisation’s policies and procedures on relevant privacy issues, including the zero tolerance policy on breaches to the Data Protection Act.259

Management structures and processes

5.17 The Chief Executive of the Trinity Mirror Group is responsible for the propriety and reputation of the company. The editorial functions of the national and regional titles are the responsibility of the editors of the individual titles. The management of editorial staff are for the editors alone. However, the Board has the power to appoint and terminate the contracts of the editors at all of the titles.260 Managing editors are responsible for the business operation of the newspapers and have no role in editorial issues.

5.18 The editor is ultimately responsible for the content of their publication and is granted full editorial independence by the Trinity Mirror Board. The editor of a given title within the Group will chair editorial conferences with heads of departments on a daily basis.261 262 Journalists working on the Daily Mirror are expected to know and understand the Editors’ Code of Practice.263 Mr Wallace has told the Inquiry that in his view ethics was not something that should require frequent reminding in the newsroom as, he argued, it was inherently embedded in the culture of the Daily Mirror.264 To this extent, appropriate measures with regard to the verification of sources for stories, are expected to be the responsibility of individual journalists.265 The editor is also responsible for ‘certifying’ that appropriate controls are in place.

Trinity Mirror incentives

5.19 Editors at Trinity Mirror do not receive any financial benefit for printing exclusive stories. Trinity Mirror operates an annual bonus scheme which is linked to the financial performance of the company and an editor’s individual performance.266

Mirror Group Regionals

5.20 The Mirror Group regional titles also operate under the Mirror Group Standards of Business Conduct.267 In addition, there is a Mirror Group Regional Editorial Policy, which incorporates the Editors’ Code of Practice.268 Approaches may differ across the regional portfolio. The Inquiry has seen evidence from the Manchester Evening News (MEN), which was purchased from the Guardian Media Group in 2010, indicating that it requires every article to be looked at by two experienced journalists to ensure that it is lawful, accurate and fair.269 The MEN also seeks to ensure that nothing is published which is legally problematic, with a policy ‘if in doubt, don’t publish’.270 Any breach of the law or any use of subterfuge would have to be approved by the editor.271

6. The telegraph Media group

6.1 The Daily Telegraph has the highest daily circulation of the national broadsheet titles. The Chairman of the Telegraph Media Group, Aidan Barclay, has described the Telegraph as an ‘iconic’ company,272 which has successfully established itself as an “investigative and campaigning newspaper”.273 in this regard, Mr Barclay has said that the publication of the MPs’ expenses story in 2009 was:274

“…probably the most important piece of investigative journalism across the British press in the last two decades.”

6.2 The current editor of the Daily Telegraph, Tony Gallagher, told the Inquiry of the quality of the professional culture that exists at the Daily Telegraph. He, like others, emphasised that his newsroom operates in full compliance with the terms to the PCC Code, and is proud to produce quality news that is fair and accurate.275

6.3 The Daily Telegraph has historically supported the Conservative party. With this in mind, Mr Barclay also told the Inquiry that:276

“We operate under an overarching principle that customers come first. That does not mean the papers do not criticise Conservative Governments and politicians: they regularly do.”

History

6.4 The Daily Telegraph was launched by Colonel Arthur B Sleigh in 1855, allegedly to air a personal grievance, but was soon sold to Joses Moses Levy. Levy’s son, Baron Burnham, eventually sold the Telegraph to Viscount Camrose in 1928 and both the Burnham and Camrose families remained involved in the management of the newspaper until it was bought by Conrad Black in 1986 (Lord Black of Cross Harbour). Under Lord Black’s ownership, the Telegraph Group became part of Hollinger International, in which Lord Black’s Hollinger Inc. held a 73% controlling stake in the company. In 2004 Sir Frederick and Sir David Barclay purchased Hollinger Inc, and with it the controlling stake in the Telegraph Group.

6.5 In February 2012, the Daily Telegraph had a circulation of 578,774, its nearest broadsheet competitor is The Times with a circulation of around 398,000. Even so, this amounts to only a small fraction (6.3%) of the UK’s national daily newspaper circulation. In the same month, The Sunday Telegraph, had a circulation of 461,280, which is the second most popular of the Sunday broadsheets (well behind the Sunday Times on 939,395), and accounts for 4.2% of UK Sunday newspaper circulation.277

Governance structures

6.6 The Telegraph Media Group is a private company, ultimately controlled by Sir David and Sir Frederick Barclay’s Family Settlements.278 In 2010, it recorded a profit after taxation of £50m on a turnover of £324m.279 It currently employs over a thousand members of staff.280 The Group publishes the Daily Telegraph and the Sunday Telegraph and also operates the Telegraph website, www.telegraph.co.uk.

Telegraph boards

6.7 The Board of the Telegraph Media Group consists of eight members: the Chief Executive and Finance Director, Howard and Aidan Barclay, three Directors of other Barclay family undertakings, Rigel Mowatt, Philip Peters and Michael Seal and Loraine Twohill, who is an independent non-executive Director.281

Telegraph editorial independence

6.8 The commercial and editorial sides of the business are run separately, with the editors reporting directly to the Chief Executive.282 The editorial teams determine what appears in the publications at TMG, and decisions on editorial matters are left entirely to the editor, subject to operating within TMG budgetary constraints.283 Mr Gallagher, told the Inquiry that he speaks only once or twice a month to the Chairman of TMG and would otherwise be left to focus on editorial matters.284

Telegraph financial governance

6.9 The Board agrees the budget for the newspaper, and authority to commit expenditure is delegated by the Board to department heads and senior editorial staff. Approved budgets for each editorial department are reviewed on a monthly basis.285 Any expenditure above the delegated level must be approved by the managing editor, Executive Director Editorial or the Finance Director.286 TMG has made clear to the Inquiry that it has systems in place to ensure that it acts in accordance with the requirements of the Companies Act 2006.287

6.10 TMG also operates clear procurement policies which state that any procurement must fully reflect all applicable laws and requires that any actual or potential unethical or illegal practices by a supplier should be reported to the Finance Director and Commercial Legal Director.288 Only five staff members at TMG are able to authorise payments to contributors of over £500 or payments to suppliers of over £1,000.289 Cash advances are generally only permitted for foreign travel expenses.290

Telegraph policies and procedures

6.11 All TMG editorial staff are required under the terms of their contracts of employment to comply with the terms of the Editors’ Code of Practice.291 The company’s staff handbook and standard employment contracts also require adherence to a wider set of standards, which include not bringing the company into disrepute.292 More recently, TMG have moved to synthesise their core principles of ethical and legal conduct into an Editorial Code of Conduct.293

6.12 TMG operates a whistle-blowing policy which allows staff to raise on an anonymous basis concerns they may have around potentially illegal or unlawful activity, or wrongdoing.294 TMG also introduced an Anti-Corruption and Bribery policy in 2010 following the introduction of the Bribery Act.295 At the time of writing, TMG did not have a policy on the employment of private investigators, but the company has made clear in evidence to the Inquiry that none have been employed within the tenure of the current editors.296

Telegraph management structures and processes

6.13 The Chief Executive Officer of the TMG, Murdoch MacLennan, is responsible for day to day leadership of the company. He holds weekly senior management meetings to discuss key strategic issues.297 Working to the editor of the Daily Telegraph are, the deputy editor, assistant editor and executive editor. Together they comprise the title’s senior editorial team. Beneath them sit the Department Heads (or editors). They are also supported by deputy editors.298

6.14 There are two legal departments at TMG. They have distinct responsibilities; the Corporate Legal Department and Editorial Legal Department.299 When issues arise they are addressed jointly by the editorial and relevant legal teams. Where a complaint is made about a failure to adhere to terms of the Editors’ Code of Practice, the Editorial Legal Department is responsible, together with the journalists involved and department head, for conducting an investigation and responding to the complaint – including drafting an apology where appropriate.300 Editorial Directives, for example requiring staff to bring specific types of issue to the legal department, are issued from time to time.301

6.15 Mr Gallagher told the Inquiry that the Daily Telegraph operates a system of peer-review for the majority of articles published on the Telegraph’s website. This has replaced the traditional process of editorial checks found in most newsrooms, for online news stories, as it relies on the judgment of more experienced reporters, who are effectively allowed to “self-publish their stories”.302 Mr Gallagher has noted, however, that this process is only applied to seemingly uncontroversial news stories, whereas any article which might attract attention would be edited through the normal process, including, where appropriate with legal involvement.303

Telegraph incentives

6.16 TMG operates an annual bonus scheme for its senior commercial executives and senior editorial executives. These bonuses are not contingent on publishing particular stories or exclusives, but rather are determined by financial targets related to the operating profit of TMG and the individual titles.304

7. The Guardian Media group

7.1 The Guardian is the only national broadsheet title that is owned by a Trust, rather than a traditional proprietor owner, or through shareholders in a public or private company. Dame Elizabeth Forgan is the Chair of the Scott Trust which owns the Guardian. She has said that the central objective of the Trust is:305

“To secure the financial and editorial independence of The Guardian in perpetuity: as a quality national newspaper without party affiliation; remaining faithful to liberal tradition; as a profit-seeking enterprise managed in an efficient and cost-effective manner.”

7.2 The Guardian is required by the Trust to support ‘liberal journalism’. It has developed a reputation as a strongly liberal newspaper. Although this might be considered as a direct influence on the editorial decision-making at the Guardian, Alan Rusbridger, editor-in-chief of the title, explained to the Inquiry that:306

“…the only thing the Scott Trust tells you is to carry on the paper as heretofore, and it’s left to you to interpret the traditions of the paper in the light of the current circumstances. I think it’s a liberal small “L”, …we discuss what the meaning of that is, but it’s not liberal politically.”
With this in mind, the Guardian has supported at different times the Labour Party, the Liberal Party, the Social Democratic Party, and the Liberal Democratic Party at general elections since 1945.307

History

7.3 The Manchester Guardian (the Guardian) was founded in 1821 by John Edward Taylor to promote liberal interests in the aftermath of the Peterloo massacre. The journalist CP Scott was made editor of the Guardian in 1872 and remained in post until 1929. Scott bought the paper in 1907 and in 1936 the Scott Trust was established by the son of CP Scott and became the owner of the Guardian. The Trust Deed requires that the company must

“... be carried on as nearly as may be upon the same principles as they have been heretofore conducted.”

7.4 The Trust was established as a limited company in 2008, with the core purpose of securing the financial and editorial independence of the Guardian in perpetuity.308 The Scott Trust is the owner of the Guardian Media Group. The Guardian Media Group has three wholly owned businesses: Guardian News & Media, GMG Radio and GMG Property services; and shares in Trader Media Group and Emap.

7.5 In 2010 GMG had a turnover of £280.2m excluding its joint ventures, but made an operating loss of £53.9million.309 Guardian News & Media publishes the Guardian and the Observer and guardian.co.uk. It also operates Guardian Business and Professional. GNM had turnover of £221m in 2010.310 In February 2010 The Guardian had circulation of 215,988, making it the second smallest circulation national broadsheet newspaper, with only 2.4% of UK daily national circulation. The Observer, in February 2010, had circulation of 253,022, which is again the second smallest of the Sunday broadsheets, accounting for 2.3% of national Sunday newspaper circulation.311

Governance structures

7.6 Guardian News and Media is wholly owned by GMG. GMG is wholly owned by the Scott Trust, who appoints, and can remove, the editor of the Guardian.312 The Scott Trust is not only responsible for the appointment of the editor-in-chief but is also responsible for the appointment of the readers’ editor. Only the Trust has powers to rescind that appointment, and that is done by way of a vote of the Board of the Trust.313 This is to ensure the independence of the readers’ editor from senior operational staff at the Guardian and the editor-in-chief.

Guardian boards

7.7 The Board of the Scott Trust comprises ten directors. It includes the editor-in-chief of the Guardian, Alan Rusbridger, and the Chief Executive of GMG.314 Directors are appointed by a Nominations Committee (comprising the Chair and five Independent Directors). The directors meet quarterly and also meet annually with the full Board of GMG.315

7.8 The GMG Board consists of ten members, and includes the editor-in-chief of the Guardian, the Chief Executive of GMG and the Company Secretary of GMG, with addition the Chief Financial Officer of GMG and the Chief Executive of GMG Radio. The Board also comprises five Independent Directors.316 The Chair of the Scott Trust leads the appointment process for the Chair of GMG.317 The structure is deliberately designed to keep separate the editorial and commercial parts of GNM’s business in order to guarantee the editorial independence of all journalistic content.318

7.9 The Chief Executive Officer of GMG is ultimately responsible for all non-editorial aspects of corporate governance. All board directors of GNM and GMG (with the exception of the editor-in-chief) are accountable to the Chief Executive.319

Guardian editorial independence

7.10 Editorial governance is the responsibility of the editor-in chief, who is accountable to the board of the Scott Trust. The GMG Board is briefed on a monthly basis by the editor-in chief on editorial strategy and implementation, budgets, capital expenditure, industrial relations issues, significant stories and press coverage of the group. The editor-in chief also briefs the Scott Trust on similar issues on a quarterly basis. Both Boards reviews past performance and strategy for the year ahead in November.320 Directors do not discuss the editorial or political line of the paper.321

Guardian financial governance

7.11 The Group Audit Committee assists the GMG board in its oversight, including the integrity of financial reporting procedures and the company’s compliance with legal and regulatory requirements.322 GNM has policies on expenses, delegated authority thresholds, bribery and anti-corruption, corporate hospitality and gifts and travel and expenses.323 These policies are available to staff through the company intranet and are kept under review to ensure that they are up to date.324

7.12 Payments to freelance journalists are processed by administrators using a bespoke payments system. Any one-off payments are made through the Finance Department. Payments to regular suppliers are made through a procurement system which requires a unique purchase order number for that payment to be made.325 Staff are able claim expenses in accordance with the company’s expenses policy. Expenses are approved by officials within delegated approval limits.326 If a claim exceeds the limits set by the relevant policies, claims are referred to the managing editor for further scrutiny.327

Guardian policies and procedures

7.13 The Guardian operates its own editorial code of conduct which has been in place since 2002.328 This incorporates the Editors’ Code of Practice, which Guardian staff are required to comply with in the terms of their employment contracts.329 The GNM Code includes a number of issues not covered by the Editors’ Code of Practice (e.g. conflicts of interest and declarations) and also offers more comprehensive guidance than the Editors’ Code of Practice on a number of matters including privacy. In addition, the GNM Code also sets out a series of questions, including engaging the “the Omand Principles”, which should be considered by journalists whenever privacy issues are potentially engaged. These are:330

  1. There must be sufficient cause – the intrusion needs to be justified by the scale of the harm that might result from it;
  2. There must be integrity of motive – the intrusion must be justified in terms of the public good that would follow from publication;
  3. the methods used must be in proportion to the seriousness of the story and its public interest, using the minimum possible intrusion;
  4. there must be proper authority – any intrusion must be authorised at a sufficiently senior level and with appropriate oversight;
  5. there must be a reasonable prospect of success’ fishing expeditions are not justified.

7.14 The Guardian also operates a whistle blowing policy, and encourages its use by reassuring staff that they should be able to raise issues without fear of “accusations of disloyalty, harassment or victimisation”.331 An Anti-Bribery and Corruption Policy was introduced in June 2011, which was designed by the GMG and GNM’s Anti-Bribery and Corruption Committee. This Committee reports on a regular basis to the GMG Board.332

Guardian management structures and processes

7.15 As previously stated, the editor-in-chief is responsible to the Scott Trust in terms of all editorial matters. In this regard, he reports directly to the Trust, rather than GMG’s Chief Executive Officer. However, the editor-in-chief (who is also a director of both GMG and GNM) also has a responsibility to keep the GMG board informed about his areas of business, including the business of both the Guardian and the Observer.333 The remainder of the board directors of GNM and GMG are accountable to the CEO. He in turn reports to the Chair of GMG and directors of the Trust.334 335

7.16 On an editorial level, the editor-in-chief of the Guardian and the editor of the Observer are responsible for their respective titles. They hold meetings to discuss issues affecting both titles, including budgets, staff issues and general strategy.336 The editorial process is the same for both the print and digital edition of the Guardian.337

7.17 Parallel to such processes, the Director of Editorial Legal Services, Gillian Phillips, reports directly to the managing editor of GNM, with whom meetings are held on a fortnightly basis. The Director of Editorial Legal Services is responsible for briefing the GNM Executive Committee on a monthly basis. These briefings will cover the main legal issues which have arisen, and the status of any complaints, or other on-going matters which the Committee should be made aware of.338

Guardian readers’ editors

7.18 Both the Guardian and the Observer have readers’ editors. The Guardian’s readers’ editor, Chris Elliott, is, as noted, independently appointed by the Scott Trust, and is accountable only to the Chair of the Trust.339 The readers’ editor at the Observer is not appointed in this way, but through the editor and with “an unwritten guarantee of independence”.340 This position is currently held by Stephen Pritchard, who is also member of the Board and former President of the Organisation of News Ombudsman.341 The contact details of the readers’ editor of both titles are published in each edition of the respective newspaper.

7.19 As noted above, the Guardian is one of very few newspapers to employ a readers’ editor. The role of the readers’ editor is to correct or clarify inaccuracies, discuss issues raised by readers and liaise with an external Ombudsman.342 The readers’ editor at the Guardian writes a weekly column on the issues raised by readers. Reflecting the corporate and editorial independence of the role, this cannot be amended by the newspaper’s editor.

7.20 On occasion, when the editor might disagree with the judgment of the readers’ editor, the views of the former may be taken into account, but ultimately the editor has no power to change the outcome of the readers’ editor’s findings. To this extent, Mr Elliott has stressed to the Inquiry that:343

“...obviously you listen carefully to that [view of the Editor], but if, in the end, you think it’s the right thing to do, you can fall back on the fact that you are employed by the Trust -- I’m employed by the Trust and I actually think they’re wrong and we go ahead and I do what I see fit.”
However, there is a consultation process with the editor, the managing editor and the journalist involved in the article, once the readers’ editor has made his decision.

7.21 The readers’ editor may also refer any substantial grievances to the external Ombudsman. This is an externally appointed reviewer, who considers any complaints which bring into question the integrity of a Guardian journalist.344 The Ombudsman’s role is to review the process of review conducted by the Readers’ Editor in carrying out the initial investigation. The Ombudsman does not look at or reinvestigate the complaint itself:345

“…he will look at the processes, the way we’ve actually carried out, rather than try to reinvestigate it. What he’s trying to assess is whether the readers’ editor has done it fairly and competently.”

7.22 In his evidence to the Inquiry, Mr Elliott explained that the external Ombudsman is unlikely to deal with a large number of referrals in the space of a year, only “maybe one or two a year.”346

8. The independent group

8.1 The Independent is the youngest of the major national daily newspapers. Independent Print Limited is jointly owned by the Russian business tycoon, Alexander Lebedev and his son, Evgeny. The Evening Standard Limited is also owned by the Lebedevs, having been purchased in January 2009. Evgeny Lebedev told the Inquiry that his focus for both newspaper titles is the provision of accurately informed journalism, which is ethically sound and delivered in the public interest. He said that although his papers might adopt different approaches and have different political leanings, the broader purpose of both titles remains dedicated to fair and accurate journalism.347

8.2 Mr Lebedev has expressed his pride at the successes of the London Evening Standard, a free newspaper title, which has reach of over one million readers a day in London, reporting on issues affecting the people of the capital.348 With regard to the philosophy of The Independent, Mr Lebedev has said that the title is:349

“…famed for its brilliant journalism, its foreign reporting, its comment, its -- it’s a newspaper that people trust because traditionally it’s been independent.”

8.3 The current editor of The Independent, Christopher Blackhurst, echoed Mr Lebedev’s evidence with regard to the reputation of The Independent. Mr Blackhurst told the Inquiry that the Independent prides itself on taking the highest ethical stance. He said that this ethical journalism is the core of The Independent brand, which Mr Blackhurst described as a “serious newspaper at the top end of the market”.350 He has said further that this commitment to high quality journalism is reflected in the content published by the newspaper.

8.4 The Independent did not adopt a party political position at the two general elections that followed its launch but supported Labour at the 1997 electon. In subsequent elections it has switched its support between the Labour and the Liberal Democrat parties.

History

8.5 The Independent was founded in 1986 by the journalists Andreas Whittam Smith, Stephen Glover and Brett Straub, and was published by Newspaper Publishing plc. The creation of the new paper took place against the background of the Wapping disputes. It launched with the advertising slogan, “It is. Are you?” making play of the independence of the newspaper from the influence of a powerful proprietor.

8.6 Although The Independent enjoyed initial success, and had achieved a circulation in excess of 400,000 by 1989, by the early 1990s its readership had declined and the paper was struggling financially. In 1994 both Independent News & Media (INM), a prominent Irish publishing company, and Mirror Group Newspapers took a stake in Newspaper Publishing and in 1996 INM purchased the whole company. By 1998 circulation had fallen to below 200,000, the smallest circulation of any of the national daily newspapers by some margin. By 2004, The Independent was reporting losses of £5m per year, and in 1998, following staff cuts, and in order to make further cost savings, the title moved to Northcliffe House, the headquarters of Associated Newspapers, where the two groups shared a number of services (though editorial, management and commercial operations remained separate).

8.7 In January 2009 a company set up by the Lebedevs, purchased the loss making Evening Standard from Associated News for £1. The DMGT retain a 24.9% share of the Evening Standard.351 In March 2010, it was announced that the Lebedevs’ company would be buying The Independent. Alexander Lebedev was quoted as saying:352

“I invest in institutions which contribute to democracy and transparency and, at the heart of that, are newspapers which report independently and campaign for the truth to be revealed. I am a supporter of in-depth investigative reporting and campaigns which promote transparency and seek to fight international corruption. These are things the Independent has always done well and will, I hope, continue to do.”

8.8 A separate newspaper, the ‘i’ was launched in October 2010, aimed at ‘readers and lapsed readers’ of all ages and commuters with limited time. Priced at 20p it has quickly overtaken The Independent in circulation.

8.9 In February 2012, the circulation of The Independent stood at 105,160. Its sister paper ‘i’ has more than twice the circulation, at 264,432. Altogether the two titles account for 4% of UK national daily newspaper circulation. The Independent on Sunday had a circulation in February 2012 of 124,260, or 1.1% of UK national Sunday newspaper circulation.

Governance structures

8.10 Independent Print Limited (IPL), wholly owned by the Lebedev Family, is a private company. The company is legally distinct from the Lebedev owned Evening Standard Limited,353

The Independent board

8.11 The Board of IPL consists of a Chairman, Deputy Chairman, the CEO of IPL and of Non Executive Directors. The Board is also attended by the Company Secretary and Finance Director.354

8.12 The IPL Board also exercises a number of financial functions, which are reviewed on a weekly basis, to monitor the budgeting within the company. Editorial staff, for example, are allocated set budgets and these are monitored on a weekly basis and scrutinised in more depth by the Board on a monthly basis.355 The Finance Director and Company Secretary of IPL has emphasized the importance of transparency of editorial payments to the Board’s overall corporate and financial governance functions.356

8.13 The managing editor of IPL and Evening Standard Limited is responsible for the IPL’s company strategy.357 This document is endorsed by the IPL Board, and is used to monitor the progress of IPL on a monthly basis through Board meetings.358

The Independent editorial independence

8.14 There is complete editorial independence from the Board.359 The governance of the Board is concerned primarily with the financial management of the business. managing editor, Andrew Mullins explains that:360

“…we separate commercial and editorial to create clear editorial independence.”

8.15 However, there are instances where editorial issues might be raised at Board level and Mr Blackhurst has also told the Inquiry that as the editor he is fully aware of the company’s overall business strategy.361 Mr Mullins explained that there are occasionally scenarios where costs related to the editorial structure are impacted; or where sales would significantly fall. Mr Mullins explained that in these instances, discussion of editorial processes would be discussed at board level, although there would never be any discussion in relation to the editorial content.362

8.16 Mr Blackhurst also told the Inquiry that The Independent has always sought to adopt a deliberately distinct approach to other national titles and continues to operate “free from proprietorial influence”.363 In his evidence to the Inquiry, Mr Lebedev emphasised that although he might on occasion share his expectations and personal vision with his editors on a regular basis, he has no influence on the editorial content of his newspapers.364 He explained to the Inquiry that:365

“…we certainly discuss policies, and I certainly expect it to be taken into account, but to answer your question, there have been many instances when we’ve discussed particular issues, stories, policies and editors would have stuck with their original plan to write whatever they were planning to write.”

The Independent financial governance

8.17 The Independent has in place clear procedures that govern all financial transactions made by staff at the company.366 Manish Malhotra, the IPL’s current Finance Director and Company Secretary of Evening Standard Limited told the Inquiry that these procedures reflect the:367

“…separation between editorial and commercial… …for that reason it’s very important that editorial payments are going through the overall corporate and financial governance of the company so that we have clear sight of what’s being paid and who’s being paid.”

8.18 Under this system, payments to casual staff are authorised by the relevant Department Head and have to be approved by the Financial Controller or the Senior Management Accountant.368 Contributions payments (made to freelancers, photographs etc) are made on the payments system and checked by the Finance Department with levels of authorisation required dependent on the amount concerned. The Financial Controller and Senior Management Accountant authorise such payments. Expenses have to be authorised by department heads, and editorial expenses must be authorised by the Managing Editor. These payments are then authorised by the Finance Department in a similar way to contributions payments. No advances are made for UK based expenses.369

8.19 Mr Malhotra told the Inquiry that there are no mechanisms in place which allow for journalists or other IPL members of staff to make cash payments.370 Internal controls are overseen by the office of the managing editor, who ensures that any payments which are made are:371

“…proper, are substantiated and, if appropriate, that there is a receipt to support them.”

The Independent policies and procedures

8.20 IPL has recently introduced a Code of Conduct which brings together a number of policy matters in one document. Mr Blackhurst told the Inquiry that it would have been unlikely for The Independent to have introduced this revised Code, were it not for the exposure of phone hacking and other practices across the British National press. The purpose of the revised Code is to ensure clarity on a range of issues facing journalists.372 The IPL’s Finance Director and Company Secretary has explained that the document goes further than the PCC Code, that:373

“…it’s a wider document because it covers both commercial and editorial operations. It also goes into the use of hospitality and guidance and policies around that.”

8.21 The creation of the Code was triggered by the enactment of the Bribery Act. However, as well as covering anti-bribery it also covers business relationships, social media and data protection.374 IPL has also restated its insistence on staff compliance with the Editors’ Code of Practice.375 IPL’s Code of Conduct details individual financial responsibility within IPL, and the policies on company expenses and hospitability.376 The IPL Code of Conduct also includes a policy on whistle-blowing, which encourages employees to report concerns without fear of reprisal.377

8.22 IPL also has a clear disciplinary policy which sets out that employees who are found to have committed acts of gross misconduct are liable for dismissal. Acts of gross misconduct includes ‘theft, dishonesty or deliberate falsification of documents’, ‘unauthorised use or disclosure of confidential information’ and ‘a serious act which breaks mutual trust and confidence or which brings or is likely to bring IPL into disrepute’.378 This policy was explained to the Inquiry by Mr Blackhurst in the context of the disciplinary action that has been taken against Johann Hari, a former journalist at The Independent. Mr Hari was accused of plagiarism and producing derogatory comments about fellow journalists on the Wikipedia website.

8.23 Staff and external contributors are required by contract379 to comply with both the law and with the PCC Code.380 Freelance contracts require that:381

“Anyone who supplies material to any of our publications must ensure that their conduct and the material they submit are ethical, legal and proper.”

8.24 Other than these guidelines, there are no specific policies in place in relation to the payment for information. Mr Blackhurst has acknowledged that payments are sometimes made for ‘tip-offs’ for stories carried in The Independent’s diary page but Mr Blackhurst also stated that he exercises considerable caution with information received in this way. He told the Inquiry that the Independent would:382

“…only pay, as a point of principle, if subsequently the story checked out. You wouldn’t be agreeing and paying… That’s not how it works.”

The Independent management structures and processes

8.25 Mr Blackhurst described The Independent as a relatively small newsroom. The group employs just under 200 journalists across the three titles (the daily, Sunday, and ‘i’ publication) and a small number of foreign correspondents.383

8.26 Letters to the editor are handled between the editor and the managing editor, in the absence of a readers’ editor. Mr Blackhurst said that The Independent does not have enough resources to merit the appointment of a readers’ editor at the title.384

8.27 The editor is responsible for overseeing processes around the verification of sources in the newsroom. Checks are made by the original reporter, the news editor, the deputy editor and finally the editor, having been through legal scrutiny. Mr Blackhurst told the Inquiry that:385

“I’m with the news editor, the foreign editor, the deputy editor pretty much all day long, and they’re around me, and it’s not a case of formal up and down the line requests. If I want to ask a reporter: “Where’s the story come from?” I’ll ask them. I won’t wait for the deputy editor to speak to the news editor to speak to the reporter. We haven’t got all day. I mean, just get on with it.”

8.28 Freelance writers are generally dealt with by the Heads of Department and very rarely deal directly with a newsroom editor, unless the freelancer is working on a substantive story.386

9. The financial times

9.1 The Financial Times focuses on the detailed and impartial reporting of business and financial issues. Lionel Barber, current editor of the Financial Times, told the Inquiry that as a consequence of this focus, that paper avoids the more populist news items which might be given space in other parts of the UK press.

History

9.2 The Financial Times (FT) was first published in 1888. In 1945 it merged with the Financial News. The FT was acquired by Pearson Plc in 1957 and is now a global newspaper, printed in 18 locations, in three international editions and with estimated global readership of 1.4m across more than 100 countries.387 Pearson is primarily an education publishing company, with publications of educational material accounting for 74% of its revenue. 19% of Pearson revenue is derived from its consumer book publishing arm, with the remaining 7% coming from the FT Group which provides business information both through publication of the FT and digital services.

9.3 The FT Group, including both FT print and digital services had sales in 2010 of £403m, with operating profit the same year of £60m. Digital revenues accounted for 40% of FT Group revenues. The FT Group employs 2,600 people, of whom 1,600 are based in the UK.388 In February 2012 the FT had a UK circulation of 316,493, making it the third largest selling broadsheet newspaper in the UK after the Daily Telegraph and The Times, giving the FT some 3.5% of the UK national daily newspaper market.389

Governance structures

9.4 FTL is wholly owned by Pearson Group and as such both the Chief Executive and the editor report to the Chief Executive of Pearson Group. Pearson is a public company and has dual listing on the US and UK stock exchanges.390 The editor of the Financial Times is appointed by the Chief Executive of Pearson Group, who is also the only person who can remove him or her. On financial matters the editor reports to the Chief Executive of the FT. The editor of the FT, Mr Barber,391 has made it clear in evidence to the Inquiry that there is no editorial involvement by Pearson. The Chief Executive of the FT has said that reporting to Pearson provides ‘a further layer of governance’,392 but no additional information has been provided on how that relationship works in practice.

9.5 The FT ‘family’ consists of a number of different news services. The FT itself and FT.com, where relevant, has according to the FT’s own figures,393 a combined paid print and digital circulation of 591,390. This is made up of the FT newspaper’s daily (global) circulation of 344,583 noted above394 and the 247,000 paying FT digital subscribers. The FT has said that it has a combined print and online average daily readership of 2.1m people worldwide. FT.com has over 4m registered users.

Financial Times boards

9.6 The FT Board of Directors comprises the editor and Chief Executive of the FT and the managing editors of other parts of the FT family as well as senior Directors with responsibility for finance, HR and communications. There are no independent Directors on the Board.395 The Board is not expected to have knowledge of the sources of stories that appear in FT publications.396

Financial Times financial governance

9.7 The FT group is profitable and has shown growth in profits over the period 2005-2010.

Financial Times policies and procedures

9.8 Pearson PLC publishes a Code of Conduct which requires all Pearson employees (and therefore all FT employees) to conduct themselves in accordance with the law and with the ethical principles set out in that Code.397 All Pearson employees are reminded of the Code on an annual basis and required to confirm compliance or identify cases of non-compliance.398 Pearson employees can report breaches of the Code to their manager or in-house legal team.

9.9 The FT incorporates the Editors’ Code of Practice into employee contracts and has further, additional requirements in relation to financial reporting and share ownership.399 FTemployees are asked by management to sign up to the terms of the Editors’ Code of Practice and are asked to declare any financial interests in a share register. Evidence has been submitted that demonstrates 75% of FT employees had done so.400 It is the intention of the FT to require all employees to sign up to compliance with the Editors’ Code on an annual basis.401 The Inquiry was told that management are not aware of any breaches of the Editors’ Code of Practice at the FT.402

9.10 Mr Barber said that journalists at the FT are expected to go beyond what is required in the PCC Code and uphold the highest levels of ethical journalism at his title. To this effect he told the Inquiry that:403

“…the reason we set such a high bar is that our relationship with our readers -- and they are largely in business and finance, but not exclusively, and diplomacy and academia – is one of trust. People have to be able to rely on the Financial Times for accurate information which is set in context, multiple sourced and that they can rely on it because they’re making decisions, important decisions in their respective professions.”

9.11 The news editor is responsible for ensuring that the relevant editorial checks are made in the FT newsroom. Mr Barber has described the position of the news editor at the FT as one the most “critical appointments that I can make as editor”.404

9.12 Pearson also operates a whistle-blowing hotline called ‘Ethicspoint’ which allows employees to report breaches of the Pearson code on an anonymous basis.405 However, Mr Barber told the Inquiry that the FT does not offer a similar whistle blowing hotline for breaches of the Editors’ Code of Practice. Of course, employees are entitled to use the Pearson hotline to raise any concerns they might have, but Mr Barber said that he would expect any issues in relation to such breaches to be brought to the attention of senior management directly.406 Mr Barber spoke about a “good culture” at the FT and said that he would expect problems to be shared at all levels. He also told the Inquiry that the managing editor operates an open-door policy for staff who may wish to raise any HR issues, and works together with the Financial Times union, to whom individuals can also bring grievances.407

9.13 In this regard Mr Barber told the Inquiry that:408

“I think the FT should be the gold standard in journalism, and that means that we need to uphold the highest practices, the highest standards of integrity, and that is why we have the Investment Register and why we want to have full compliance from our journalists.”

9.14 The FT also has in place an anti Bribery and Corruption policy, introduced after the Bribery Act 2010.409 Where an employee might have a concern relating to bribery or corruption at the FT, they are required to raise it with their immediate manager or with the in-house legal or internal audit teams, or to use Ethicspoint to report their concerns, should they wish to do so anonymously.

9.15 The FT has policies in place regarding approval of payments to third parties and payment of expenses to employees.410 In both cases expenditure within agreed budgets and spending limits are approved by the individual incurring the expenditure and on the basis of appropriate evidence of the expenditure. Generally two individuals will review any expenses claim.411 These processes are checked regularly to ensure compliance.412 The FT states that it does not pay sources for stories, though sometimes reasonable expenses, such as travel, may be reimbursed, though no specific incidences are recalled.413

9.16 Whilst the editorial management team is responsible for ensuring editorial staff adhere to the PCC Code of Practice, other policies such as the company’s anti-bribery policy are the responsibility of the Company Secretariat team.414

Financial Times management structures and processes

9.17 The FT Management Board are responsible for the corporate and financial governance of the FT. Its operation is entirely separate from all editorial responsibilities which lie with the editor. The FT’s finance team is responsible for overseeing the processes of expenses and invoice payments.415

9.18 It is the role of the managing editor to ensure the management of the editorial budget, staff management and the general departmental administration of the newsroom.416 The managing editor is also responsible for administering the Investment Register, an internal procedure which ensures that the investment interests of editorial staff are appropriately disclosed.417

Financial Times incen t ives

9.19 Financial incentives for the Chief Executive are linked to circulation and profitability of the group.418 There are no financial incentives for the editor related to the production of exclusive stories.419

10. The regional press

10.1 There are 1,167 regional and local newspapers operating in the UK today, including 105 dailies, 15 Sundays, 504 paid weeklies, 533 free weeklies and ten combined weekly titles.420 As of 1 January 2012 there were 87 regional press publishers, including 40 publishers who produce just one title each.421 The top 20 publishers account for 86% of all regional press titles and 97% of total weekly circulation.422 Table 5.1 (below) sets out the twenty most significant regional newspaper groups measured both by weekly circulation and by the number of titles published.

10.2 Regional newspapers in the UK are read by 32.9 million people (70.7% of all British adults), compared with the 56.8% who read a national newspaper. Significantly, 27% of those who read a regional newspaper do not read a national newspaper.423 In addition to the regional print titles there are also over 1,600 websites and hundreds of other print, digital and broadcast channels produced by local and regional media groups.424

10.3 The regional and local newspaper industry also has a significant economic footprint. Over 30,000 people, including 10,000 journalists, are employed by the regional and local press.425 The four largest regional newspaper groups had revenues in 2010 of £1,330m, with total sales and advertising revenue across the industry of £2,191m.426 However, the regional and local newspapers market has been in significant decline for a number of years. Some regional newspapers have seen their circulations halve since 2000 and others have been forced to close entirely. Annual regional newspaper circulation has fallen from just under 3.5bn in 1985 to below 2bn in 2009.427 The factors considered to contribute to this decline in circulation include: increasing access to, and adoption of, internet information sources: economic conditions; and lack of engagement with print media by young adults.428

10.4 The decline in circulation has been matched by a decline in revenue. Print newspapers have two main sources of income – copy sales and advertising. Advertising is predominantly in two different forms, display advertising and classified advertising. The local and regional press tend to rely much more heavily on classified advertising than do the nationals, with classified advertising accounting for 41% of revenues among the regional press but only 6.5% of revenues in the national press.429 All three forms of revenue have been under significant pressure over recent years.

Table C2.1

Rank – Weekly Circulation Group name Rank – No. of titles Titles Weekly Circulation
1 Trinity Mirror plc 3 140 10,087,945
2 Johnston Press plc 1 243 6,428,426
3 Newsquest Media Group 2 187 6,247,326
4 Northcliffe Media Ltd 4 91 4,690,109
5 Associated Newspapers Ltd 17 1 3,817,120
6 Evening Standard Ltd 17 1 3,503,640
7 Archant 6 66 1,725083
8 D.C. Thomson & Co Ltd 15 6 1,588,395
9 The Midland News Association Ltd 9 17 1,557,750
10 Tindle Newspapers Ltd 5 73 1,122,997
11 Iliffe News & Media 7 39 973,897
12 KM Group 8 19 322,269
13 Independent News & Media 15 6 458,483
14 NWN Media Ltd 14 14 437,451
15 Bullivant Media Ltd 13 9 364,153
16 CN Group Ltd 13 10 361,695
17 Irish News Ltd 17 1 261,882
18 Dunfermline Press Group 10 14 241,609
19 Topper Newspapers Ltd 17 1 212,384
20 Clyde & Forth Press Ltd 12 13 206,728
total top 20 publishers 951 44,609,342
total all publishers (87) 1,101 46,034,273
Source: Newspaper Society, January 2012430

10.5 Overall advertising revenues in the regional press have fallen steeply, from a high of £3,133m in 2004 to £1,599m in 2010. This is a much steeper decline in advertising revenues than has been seen in the national press or in consumer magazines.431 The decline in advertising revenue has been largely driven by competition from the internet. Classified advertising, in particular, has moved online, with the share of classified advertising online rising from 4% in 2002 to over 60% in 2010, and the printed press’ share falling commensurately from 96% to under 40% in the same timeframe. That trend is predicted to continue, with the internet accounting for over 80% of classified advertising by 2015.432 Display advertising has also moved online, but the trend is not as marked as is the case with classified advertising.433

10.6 The net result of these changes is that revenues in regional and local newspaper publishing have been very hard hit. Trinity Mirror’s regional division saw revenues fall by 47% between 2005 and 2010, while Newquest has seen revenues fall by 56% over the same timeframe and Northcliffe has seen its revenues fall by 50%. Johnston Press appears to have suffered less over the period, with revenues falling only by 23%, but it is clear that conditions for regional and local newsgroups are very difficult.

10.7 Despite this bleak picture, regional news provision remains essentially profitable, with the three of the top four regional newspaper groups for which figures are available posting profits of £154m between them in 2010.434 Sly Bailey, then Chief Executive of Trinity Mirror, told the Inquiry that, in between her submission of written evidence to the Inquiry on 13 October 2011, and her appearance at the Inquiry on 16 January 2012, the company had reduced the number of regional titles it publishes from 160 to 140.435 Ms Bailey indicated that Trinity Mirror’s regional business was facing structural challenges, with the competition from the internet and the proliferation of new connected devices, as well as cyclical challenges from the state of the economy. She said that the cyclical challenges had hit the hardest.436 The effect of the economic downturn has meant, for instance that whereas at its peak Trinity Mirror had seen £150m in revenue from recruitment advertising, this figure had reduced to £20m last year.437 Ms Bailey said that Trinity Mirror’s response to the current situation was to restructure and re-engineer the industry using technology, rather than trying to do the same things with fewer people.438

10.8 This picture was echoed by editors of regional newspaper in their evidence to the Inquiry.439 Maria McGeoghan, editor of the Trinity Mirror Regional title, the Manchester Evening News, told the Inquiry that:440

“…circulation on the Manchester Evening News and the paid for weekly titles is declining, but our website has got 1.5 million unique users every month and is growing, and I think the challenge for all of us is how we can make more money out of that.”

10.9 Over recent years the regional and national press has been concerned about, and lobbied on, a number of public policy issues that impact on them. These have included: changes in the rules governing statutory notices; local authorities publishing their own free newssheets, in particular where they are partially advertising funded; and the media merger rules as they apply to the transfer of ownership of newspaper at the regional and local level.441 This last issue is considered to be the most significant and was raised by Mr Bailey in her evidence to the Inquiry.442

10.10 The exigencies of the economic and structural problems faced by the regional newspaper industry have led to a substantial extent to groups looking to consolidate and rationalise their holdings. Savings can be achieved where titles that are geographically close can achieve synergies through working together. This has led to regional newspaper groups looking to consolidate their holdings, in particular with an eye to geographical rationalisation. The regional newspaper industry has been concerned that the Office of Fair Trading (OFT) is inclined to consider proposals for newspaper mergers in the context of the local newspaper market only, rather than taking account of the wider competition from, in particular, internet services. This, the industry argues, leads to potential regional newspaper transfers that could allow titles that would otherwise be uneconomic and may have to close to survive under different ownership. In 2009 the OFT conducted a review of the media merger regime as it applies to local and regional newspapers, and concluded that:443

“…the current merger regime, which is broadly the same for newspapers as for other industries, is well placed to take into account developments such as competition from the internet because it is evidence-based and capable of reflecting market realities. The regime is also flexible in that it can take account of valid ‘failing firm’ arguments, as well as efficiencies and any other benefits to customers brought about through a merger. The OFT has therefore recommended that no legislative changes are needed to the media merger regime. The OFT proposes that it will formally seek Ofcom’s view in future newspaper merger cases, given its specific sector knowledge in the UK.”

10.11 The first proposed regional newspaper transaction since this new process involving Ofcom was introduced was the proposal of the Kent Messenger Group to acquire seven local weekly titles from Northcliffe Media Limited. Ofcom conducted a Local Media Assessment which found that the ‘merger may provide the opportunity to rationalise costs, maintain quality and investment, and provide a sounder commercial base from which to address long-term structural change’. The OFT noted that it was able only to consider consumer benefits and that Ofcom was not able to guarantee that in the longer term any benefits arising from the transaction would accrue to consumers rather than to shareholders. In the light of this the OFT said that it could not conclude that the evidence presented to it was sufficiently compelling to indicate that those benefits can and will only be achieved through the merger. The OFT also said that they had not been shown any compelling evidence that in the absence of the transaction the titles would all continue to exist as economic going concerns. The OFT therefore concluded on 18 October 2011 that the merger should be referred to the Competition Commission.444 Within a month of the OFT decision Northcliffe had announced the closure of two of the titles concerned, the Medway News and the East Kent Gazette.445

10.12 In relation to regional and local newspapers,I do not makea specific recommendation butI suggest that the Government should look urgently as what action it might be able take to help safeguard the ongoing viability of this much valued and important part of the British press. It is clear to me that local, high-quality and trusted newspapers are good for our communities, our identity and our democracy and play an important social role. However, this issue has not been covered in any detail by the Inquiry and, although the extent and nature of the problem has been made clear, the Inquiry has heard no evidence as to how it might be addressed. I recognise that there is no simple solution to this issue. I also recognise that many efforts have been made over the years to try to find a solution, and that many of the options for public support that have been canvassed are not appropriate. This does not make the need to find a solution any less urgent. I should also, perhaps, make it clear that the regulatory model proposed later in this Report should not provide an added burden to the regional and local press.

11. Magazines and periodicals

11.1 The UK magazine market is substantial. There are some 3,000 consumer titles in the UK (this is separate from the 4,765 business to business magazines). The magazine industry has a value of £4.1bn, with an estimated 1.4bn copies sold or distributed annually, and consumers spending some £1.9bn a year buying magazines.446 ABC monitors some 515 consumer magazines published by 161 publishers with a total circulation of 54,751,905. 110 of those 161 publishers publish only one title, with a further 36 publishing two to four titles. The four most prolific publishers publish 181 titles between them. As is to be expected in such a broad and varied market, circulation varies enormously. Of the seven consumer magazines that have circulation of over a million, four are supermarket magazines, two are TV listings magazines and the other is the National Trust Magazine. Other magazines circulated to members of particular associations (for example, Saga or RSPB) have very high individual circulation. Beyond that there is no obvious pattern or rhythm to levels of circulation, with lifestyle, health and celebrity magazines varying considerably in popularity by title. Most of these consumer magazines are specialist interest titles of varying sorts and are not engaged in the sort of news and current affairs reporting, or reporting on individuals, with which the Inquiry is primarily concerned.

11.2 The magazines classified by ABC as ‘women’s interest weeklies’ include some of those best known for their coverage of celebrities and celebrity lifestyles. These 24 titles are published by 11 publishers and have a combined circulation of just over 7m.447

11.3 According to the Periodical Publishers Association (PPA) magazines are read by 87% of the population and, unlike newspapers, are particularly popular among the young, with at least 91% of 15-24 year olds reading a magazine. Whereas newspapers are essentially ephemeral, and understandably have developed a reputation as tomorrow’s fish and chip wrappers, magazines are kept and referred to because they are considered to be a “trusted friend”.448

11.4 Magazines have not been hit as hard by either structural or cyclical factors. Consumer magazine circulation has fallen, from around 1.5bn in 1985 to just over 1bn in 2009.449 Advertising revenues, having held steady at around £750m from 2000 to 2008, fell steeply in 2009 as the economic downturn hit, to just over £500m, and have not yet recovered.450 A PPA survey in 2010 found that magazine publishers in both the business to business and the consumer market were positive about the future – 78% of consumer magazine publishers were profitable, with turnover in 2011 projected to rise by over 5% and 97% of publishers expected profitability to remain steady or improve.451 This confidence was echoed by the editors of Heat, OK! and Hello! Magazines when they gave evidence to the Inquiry.452

Editorial practices and ethics of the magazine titles

11.5 The Inquiry has heard evidence from the editors of three of the most popular weekly magazine titles in Britain: Heat, OK! and Hello! Magazines. It has been evident that there are some similarities with newspapers in terms of practices of the magazine newsroom, awareness and application of the Editors’ Code of Practice, as well as the impact of technological change and the phenomenal growth of the internet as a source of news and information.

11.6 Heat Magazine employs 32 members of staff. These include three news desk reporters, one features editor and a number of reviews editors. The rest of the team comprise the art and production team.453 Hello! Magazine has forty employees, 19 of whom are either journalists or subeditors.454 OK! Magazine use only in-house journalists and employ 25 members of staff.455

OK! Magazine

11.7 Northern and Shell owned OK! magazine is internationally one of best known and most read celebrity weekly magazines,456 and has a weekly UK circulation of 473,000, and an estimated readership of over 2m. The OK! Magazine website is managed and edited separately and has its own editor. Lisa Byrne, the current editor of OK! Magazine described her title as:457

“…basically an exclusive invitation into the rich and famous and celebrities in this country and the States with worldwide celebrities. So we invite our readers into people’s homes, to their babies’ christenings, first pictures of their children, amazing exclusive weddings, so -- even the parties are exclusive, so it’s just a fantastic aspirational magazine for readers to have a look at celebrities and their lifestyles.”

11.8 Ms Byrne told the Inquiry that the availability of news on the Internet has directly impacted the circulation celebrity magazines. She said that OK! Magazine now focuses less on celebrity news, and has shifted its emphasis on more exclusive features and stories which are less readily available online.458

11.9 The majority of content that is published in OK! Magazine is sourced either directly from celebrities or through their agents. Consent is therefore freely offered in most cases for the publication of such content. Ms Byrne told the Inquiry that approximately 80% of content is produced with the direct consent of those celebrities involved.459 The remainder of content is either “…bought-in interviews, celebrity features, news round-ups and celebrity columns”.460 Such material is subject to the same processes of verification that the Inquiry has been told is common to all newsrooms; checks are made by sub-editors, senior editors and the legal department. Ms Byrne said that she is “…aware of almost every story that goes in the magazine”.461

11.10 The conduct of staff working at OK! Magazine is not subject toa specific code of practice. Nor does OK! Magazine subscribe to the PCC. However, Ms Byrne told the Inquiry that she expects her journalists to adhere to the terms of the Editors’ Code of Practice. She argued that the efficacy of the reporting in OK! Magazine is dependent on a strict adherence to the Editors’ Code of Practice, as this is vital to maintaining the relationships that the title has built up with the celebrities on which they report.462 Ms Byrne also stressed the importance of ethics to the OK! Magazine newsroom, as well as her role in overseeing that ethical practices and standards are upheld on a day to day basis.

Heat Magazine

11.11 Heat Magazine is owned by Bauer Consumer Media Limited,463 which isa UK division of the German owned Publishing House, Bauer Media Group.464 The magazine attracts approximately 320,000 readers a week. Heat Magazine also operates a website, which has been described by current editor, Lucie Cave, as an important feature of the Heat brand. The website attracts over 1m unique users each month. Ms Cave described the role of Heat Magazine:465

“…to cover the celebrities of the day in an entertaining fashion with an emphasis on interviews and amazing photo shoots that we do ourselves against a backdrop or a highly credible entertainment, TV and reviews section.”

11.12 In addition to requiring staff to abide by the terms of the Editors’ Code of Practice, Heat Magazine also require staff to adhere to the Bauer Group’s Best Practice Guidelines. Ms Cave stated to the Inquiry her expectations around journalistic standards and practice. Ms Cave fully expects all staff working for Heat Magazine to follow the Code and Practice and the Bauer guidelines as well as fully obeying the criminal and civil law. The Bauer Group Best Practice Guidelines are reviewed on a regular basis and circulated to the newsroom.

11.13 Ms Cave told the Inquiry that content is subject to routine checks by editors during the publication process, and external lawyers provide advice on an ad hoc basis as appropriate. The magazine publishes some content that originates from PR material, although Ms Cave was not able to quantify exactly proportion of the magazine is derived from such material.

Hello! Magazine

11.14 Hello! Magazine is owned by the Spanish Company HOLA, S.L., an independently owned family business.466 Between January and June 2011, Hello! Magazine recorded average total sales of 413,311 copies per week.467 The title also has an online website, which is independent from the magazine and is edited by a separate editor.

11.15 Rosie Nixon, joint editor of Hello! Magazine described the title as promoting the positive portrayal of celebrity personalities. Ms Nixon said that the unwritten philosophy of Hello! Magazine lies in the phrase “la spuma de la vida” (the froth of life), words attributed to the founder of the company, Eduardo Perez’s, grandfather.468 Ms Nixon has told the Inquiry that:469

“…the function of the magazine… is to entertain. It’s to provide an insight into the lives of the rich and the famous. …we take a look at the lighter sides of the personalities that we feature.”

11.16 Hello! Magazine publishes ‘exclusive stories’. These are agreed in advance with the celebrities or public figures concerned. Additionally, the magazine also publishes some news-based stories obtained through a variety of PR agencies. She argued that as a weekly publication, Hello! Magazine is primarily focused on building “long-term relationships with personalities, rather than getting one-off ‘scoops.’”470

.

Journalists at Hello! Magazine are expected to abide by the PCC Editors’ Code of Practice. However, Ms Nixon told the Inquiry that “there are no formal internal documents relating to corporate of editorial governance beyond the PCC Code .”471 The title also does not have a formal policy in relation to payments to external sources, but Ms Nixon told the Inquiry that as a rule it does not make cash payments for any information. The majority of the magazine’s content is produced in-house by pay-roll staff; a smaller amount of material is generated by freelance journalists, whose work is invoiced and processed according to the company’s procurement policies.472 Hello! Magazine makes payments for exclusive stories, and any fees are discussed and agreed with HOLA, S.L.’s CEO.

CHAPTER 3
ALTERNATIVE NEWS PROVIDERS

1. Introduction

1.1 For centuries the printed press was the only medium that brought news to the people. The introduction of broadcasting in the 1920s brought a new voice, but one that had a very different relationship with the public than that of the newspapers with their readers. Technological changes in the last few decades have completely revolutionised the market in which newspapers are working, leading to the fragmentation not only in readership and advertising but also the introduction of news providers that are not currently a part of the self-regulatory, or indeed any other regulatory, regime.

2. Broadcasters

2.1 The main source of news in the UK is broadcasting, with 59% of news consumption coming from the three main broadcasters (as opposed to 29% from the six main national newspaper groups).1 At the same time broadcasters reach a higher proportion of the public than any individual newspaper title, with 81% of those in the UK who consume news receiving some of their news from the BBC.2

2.2 96% of UK households have digital TV,3 offering 50 TV channels without subscription4 (and many more with subscription), including four free to view 24 hour news channels, with at least another six5 24 hour news channels in some subscription packages. With the significant exception of the BBC these broadcasters are either advertising or subscription funded. This means that broadcasters are competing with newspapers for sales, for audience time, and for advertising revenue. Broadcasters are regulated by Ofcom, operating under statutory powers, and are subject to the Ofcom’s Broadcasting Code.

The BBC

2.3 The BBC is a national public service broadcaster which is established by a Royal Charter6 (this was last renewed in July 2006, and came into force on 1 January 2007)7 and a Framework Agreement.8 The Royal Charter sets out the objectives and purpose of the BBC.9 There also exists a Framework Agreement between the BBC and the Secretary of State for Culture, Media and Sport, which sets out the provisions of the BBC’s funding and regulatory duties.10

2.4 The BBC Trust is the sovereign body, responsible for making overall strategic decisions for the BBC. It has full oversight of the BBC Executive Board.11 Lord Patten, the current Chair of the BBC Trust, has made a clear distinction between the responsibilities of the Trust and the BBC Executive. As a sovereign body, the Executive is required to act in accordance with the governance set out by the Trust; equally, the Trust must not exercise the functions that are the responsibility of the Executive.12

2.5 A number of individual Boards report into the Executive Board, including the Editorial Standards Board. This is the main editorial forum for the discussion of editorial standards issues facing the BBC by senior editors, and where responses to such issues are formulated and discussed.13 The function of the Editorial Standards Board is therefore to monitor and review the editorial compliance systems which are in place at the BBC, in tandem with the Complaints Management Board.14

2.6 The former Director General of the BBC, Mark Thompson, explained to the Inquiry that he also served as the Head of the BBC’s Executive Board. As Editor-in-Chief he was directly responsible for the entirely of the BBC’s editorial and creative output.15 Mr Thompson described the BBC in the following terms:16

“…the character of public service broadcasting and the character of the BBC’s editorial mission is different in many respects from that of some newspapers. The kinds [sic] of stories we do are different. In matters of privacy, our focus, when there is a debate about intrusions of privacy, are, I think without exception, in a journalistic context, around investigations into matters which I think everyone would accept were of public interest. …we don’t do any investigations into people’s private lives for their own sake.”

2.7 The BBC meets its public purpose obligations, set out in the Royal Charter, through the distribution of information, education and entertainment. These are delivered on multiple platforms and include television, radio and online services.17

Corporate Governance

2.8 The BBC’s Editorial Guidelines set out the overarching principles underpinning editorial management at the corporation as well as defining the appropriate structure for that management. These Guidelines, most recently revised in 2010 following a public consultation process, are “founded on the BBC’s stated editorial values”.18 The Trust is responsible for commissioning these Guidelines from the Executive Board. In addition to the Guidelines, the BBC must also comply with sections of Ofcom’s statutory Broadcasting Code,19 including the Code on fairness and privacy. This safeguards the treatment of individuals and organisations in programmes broadcasted by the BBC. Compliance with the BBC’s Editorial Guidelines is the responsibility of the individual editor and producer.20 In addition to the Editorial Guidelines, there are separate Producers’ Guidelines. Certain programmes, particularly those which rely on investigative journalism, also have to abide by relevant individual handbooks. The BBC has separate policies relating to complaints, data protection, and fraud management and ant-bribery.

2.9 Different units at the BBC have responsibility for the general oversight of specific regulatory areas. For example, Fraud Management is overseen by the Investigations Unit under the overall supervision of the Chief Operating Officer and the Chief Financial Officer. Data Protection is overseen by the Information and Compliance Unit. With effect from 1 October 2007, the Controller, Fair Trading was appointed as BBC Compliance Officer. There is also a Central Compliance Unit (also established in 2007) which is responsible for monitoring, improving and reporting on the BBC’s compliance obligations. The Compliance Unit is “not responsible for delivering compliance but is responsible for ensuring that an appropriate framework is in place to minimise compliance failures.”21 Editorial policy compliance and financial compliance fall outside the remit of the Compliance Unit’s functions.

Regulation of the BBC

2.10 The BBC is regulated by the BBC Trust. The Trust has a ‘supervisory role’ which is generally restricted to the regulation of broadcast content after it has been transmitted.22 Lord Patten told the Inquiry that:23

“I would never ever seek to interfere with one of [Mr Thompson’s] editorial decisions. I wouldn’t, for example, ever ask to see a BBC programme, at least not in conceivable circumstances, before it was broadcast, if the Director General had decided it was worth broadcasting”.

2.11 However, Lord Patten also told us that there were occasions where the Trust would consider the principles of the Editorial Guidelines prior to transmission.24 The Trust exists to hold the Executive to account, ensuring that the BBC’s performance is in line with the public purpose set out in the Royal Charter. This includes: the BBC’s compliance with general law; regulatory requirements; as well as the policies set by the Trust, including editorial guidelines and other codes, strategies and other priorities. To this effect, the duty of the Trust is to ensure that the BBC functions in the interest of licence fee payers.25

2.12 Ofcom is responsible for the regulation of some aspects of the content produced by the BBC. This responsibility is defined in the Royal Charter and Framework Agreement, and the Communications Act 2003.26 Therefore, the regulatory jurisdiction of the Trust and Ofcom overlap in respect of this content. Ofcom exercises a regulatory function in relation to the BBC’s commercial activities, notably where they impact on the wider media market. All BBC commercial services must comply with the Ofcom Statutory Code, and Article 29 of the Framework Agreement requires the BBC Trust and Ofcom to create a Joint Steering Group in respect of market impact assessments.27 However, the BBC Trust assesses the market impact of “non-services” in-house (applying a Public Value Test). There is a clear delegation of function to Ofcom in relation to the assessment of the market impact of the BBC’s commercial activities. This is accompanied by an express recognition that Ofcom could play a greater role and offer assistance and expertise to the BBC, including in relation to areas which currently fall within the remit of the BBC Trust (such as non services).

2.13 Ofcom also exercises a role of oversight in relation to the editorial content of BBC output, specifically in relation to privacy and fairness. Where Ofcom finds a breach of the privacy or fairness sections of its Code, it may require the BBC to broadcast a statement of its findings.28 Further, should Ofcom find that the Code has been breached “seriously, deliberately, repeatedly, or recklessly”,29 it can impose sanctions which range from a requirement to broadcast a correction or statement of finding to a fine of up to £250,000.30 Guidance on right to reply expressly refers to the requirement under the Ofcom Broadcasting Code to afford the person a timely opportunity to respond.31

2.14 The Inquiry has heard evidence of situations where editorial incidents have taken place, which have led the BBC Trust to commission independent investigations into apparent breaches of the Editorial Guidelines, and the decision to impose relevant sanctions.32 The scandal around the misuse of premium rate phone lines by the BBC in 2007,33 in which it was revealed that viewers had been invited to call premium rate numbers in order to enter competitions on programmes that had, in fact, been pre-recorded, is an example. The BBC Executive proposed an action plan and the BBC Trust commissioned an independent report by Ronald Neil. Mr Neil was appointed an independent editorial adviser to the Trust in order to review the Executive’s action plan. This resulted in the development of new training programmes, including the BBC Academy.34 In the interim, audience phone-ins were suspended and a new Interactive Advice and Compliance Unit was created to look at audience interaction with the BBC.

2.15 In October 2008, two radio presenters, Russell Brand and Jonathan Ross, made unacceptable phone calls to Andrew Sachs in the course of a radio programme aired in that month.35 In December 2008, BBC Management announced an action plan to address the editorial failings which had led to the programme being broadcast.36 The progress made under this action plan was then subject to an independent review carried out by Tony Stoller (former Chief Executive of the Radio Authority) and Tim Suter (former broadcasting partner and Board member at Ofcom) for the BBC Trust.37 Both the BBC Executive and the BBC Trust reported on the findings of that independent review.

2.16 Speaking to the importance to the BBC of addressing these failings in editorial conduct, Mr Thompson told the Inquiry about his role in informing the public of the necessary controls that have since been implemented, that:38

“…it’s fundamental to my duty in this role. I think my job is to – to – not just to sit on top of a management machine and try and optimise it for editorial compliance – that’s, you know, in a senses, part of what one has to do to try and get the right result – but also to take responsibility for what the BBC broadcast and also to take personal responsibility for occasions when we have fallen short of our high standards.”

2.17 The recent revelations of sexual abuse by Jimmy Savile, and decisions around the Newsnight investigation into the matter, have raised questions in some quarters as to the effectiveness of broadcasting regulation and the internal governance systems within the BBC. None of this is a matter for this Inquiry, and there are separate inquiries into the specific issues. I merely note that, without in any way prejudging any of those investigations, the original Newsnight investigations, the ITV documentary that ultimately revealed the allegations, and the subsequent Panorama programme that investigated the handling of the matter within the BBC, were produced within the constraints of broadcasting regulation, not by the print press. Any attempt, therefore, to suggest that broadcasting regulation has had any part in constraining reporting on the matter is simply not borne out by the facts.

Complaints system

2.18 The BBC is required to comply with the Royal Charter and the Framework Agreement. Complaints to the BBC therefore have an important role to play:39

“The BBC’s complaints handling framework (including appeals to the Trust) is intended to provide appropriate, proportionate and cost effective methods of securing that that BBC complies with its obligations and that remedies are provided which are proportionate and related to any alleged non-compliance.”

2.19 The Trust has the role of final arbiter in appropriate appeals, and has responsibility for setting the BBC’s complaint framework.40 A Trust Protocol is established by the Trust, which oversees the procedures for specific areas of complaint, including editorial complaints.41 This is to ensure a clear division of responsibilities between the Trust and the Executive. The Trust does not have a role in handling or adjudicating upon individual complaints in the first instance, unless the complaint is concerning the act or omission of the Trust itself.42 In this regard, the responsibility as final arbiter is delegated to the Editorial Standards Committee.

2.20 Any BBC viewer who is dissatisfied with any of the content broadcasted by the BBC may submit their complaint directly to the Corporation. Complaints that relate to fairness or privacy can also be made to Ofcom, in line with their regulatory jurisdiction over this form of content. Although the complainant can submit complaints relating to impartiality or accuracy issues to Ofcom,43 it is unlikely that Ofcom would entertain these types of complaints. Lord Patten told the Inquiry that, in practice, Ofcom would inform the complainant that such a complaint could be dealt with by the BBC.44 Equally, the Editorial Standards Committee is unlikely to consider a fairness and privacy or standards matter which overlaps with the regulatory responsibilities of Ofcom, until Ofcom has completed its own processes.45

2.21 Lord Patten explained the nature of the complaints system, whereby viewer complaints are dealt with at the first stage by the executive’s information department (possibly including the producers of the programme in question itself). Should no resolution result from this first stage of mediation, viewers can take complaints to a second stage process where they are handled by the complaints unit, governed by the Complaints Management Board (which reports directly to the BBC Direction Group).46 The last stage is the process of appeal to the Trust, should the complaint be unresolved to the satisfaction of the viewer.47

2.22 There is a recognition that the complaints system requires improvement, particularly in order to speed up the process of reply. Lord Patten’s review of BBC Governance expressly acknowledged licence fee payers had expressed concerns that the current system was “too complicated and too slow”. He told the Inquiry that he has recommended the appointment of a “chief of editorial complaints, of corrections” ,48 whose role would be to ensure that the system was improved and operated in a transparent manner. The Governance Report concluded that the BBC should publish a single page guide explaining where complainants should go to complain about BBC broadcast content or services. Lord Patten told the Inquiry that the BBC will work with Ofcom to ensure there is common language in the guide to explain in what circumstances complainants may complain to Ofcom. Other recommendations from the Governance Review include the streamlining of the appeals process and regular impartiality reviews. Concerns were also raised about the correction of mistakes made online on the BBC website.

2.23 In 2007, the BBC Editorial Standards Committee recorded that 94% of complaints had been dealt with within ten working days. In this regard, Mr Thompson informed the Inquiry that:49

“The BBC receives well over a million contacts from the public every year, of which only a relatively small proportion are complaints, but that still adds up to something like 240,000 complaints a year, of which the overwhelming majority are responded to very quickly. We have a target of responding in ten days. I think we’re currently at 93,94 per cent of that target, and in, again, the overwhelming majority of cases, the complaint is satisfactorily dealt with at that stage.”

ITN

2.24 ITN is a news provider responsible for the production of the news programme for the broadcast channel, ITV. ITN also produce Channel 4 News, through a contractual agreement between ITN and Channel 4.50 The Chair of ITN, Maggie Carver, is responsible for the organisation, but delegates editorial matters to the Chief Executive Officer, John Hardie, who is responsible for the management of editors of both ITV News and Channel 4 News.51 Ms Carver is responsible for ensuring that the corporate governance set out by the company is adhered to by staff. In part, this is done through the ITN’s Compliance Manual, the ITN Health and Safety Manual and the Ofcom Code.52

2.25 Compliance at ITN is the responsibility of the Head of Compliance, John Battle.53 Mr Battle is author of the Compliance Manual, first published in July 2004. The Compliance Manual sets out “the industry regulations that affect news reporting, the main areas of laws affecting journalism such as libel, copyright, privacy and contempt of court and internal ITN standards and procedures.”54 This manual is the centrepiece guidance issued to staff at ITN and forms the basis of ITN staff training.

2.26 ITN recently reviewed its Compliance Manual in light of allegations of phone hacking, as well as allegations of payments to public officials by journalists and others working at the NoTW. Although Jim Gray, Editor of Channel 4 News, told the Inquiry that the review of the Compliance Manual was regular procedure, he explained that additionally “as part of the process triggered by this Inquiry, we have held an independent external Inquiry into ITN’s journalistic practices and some the [sic] findings of that will feature in the new Compliance Manual.”55 Mr Battle also gave evidence to this effect, stating that:56

“It’s fair to say that as a grown-up and professional organisation, we’d have to have on board the Inquiry and what’s been discussed here and within the news. There have been some tightening up procedures, tilting, as you said this morning, sir, towards better regulation. I don’t think there’s been substantive changes as a result of this Inquiry but it also includes a lot of updates on other issues, such as Twittering in court or online posting, so it’s an update.”

Channel 4 News

2.27 Mr Gray is responsible for the entirety of editorial content of Channel 4 News, and for upholding relevant policies to ensure that journalists and individual editors at Channel 4 News are required to comply with the ITN Compliance Manual.57 Mr Gray reports directly to Mr Hardie, ITN’s Chief Executive Officer. Mr Gray told the Inquiry that Channel 4 News applied similar principles to the Omand principles,58 which are “a whole series of tests about the proportionality of what is being proposed matches the level of gravity of what the story may be”.59

2.28 Mr Gray describes Channel 4 News as a public service news broadcaster with an editorial focus on news that is in the public interest. He has said that consideration is given as a matter course to issues of privacy, consent, and public interest; all of which are built into the ITN Compliance Manual.60 He also told the Inquiry that there is a culture at Channel 4 News of behaving ethically and acceptance of journalists being held to account for their reporting. Mr Gray said in this regard that:61

“We don’t want to cause any problems, and we certainly don’t want so [sic] have any incoming attack on our reputation or integrity which would then go forward to possibly damage Channel 4’s repute, which we are contractually obliged to uphold and we must uphold and we want to.”

Corporate governance at ITN and Channel 4 News

2.29 Mr Battle explained that although ITN is not a content broadcaster, the organisation is still obliged to operate in accordance with the Ofcom Broadcasting Code, as well as with the expectations and requirements of the individual broadcasters, ITV or Channel 4.

2.30 There are three levels of compliance within Channel 4 News: the ITN system and core Compliance Manual; the Channel 4 independent producers’ handbook; and contractual obligations between ITN and Channel 4 which require consultation and notice in certain circumstances. Mr Gray told the Inquiry that the compliance manual “adds layers of practice, best practice and how to go around carrying out such investigations”.62 Separately, under the Ofcom Broadcasting Code, Channel 4 News is obliged to offer timely and appropriate rights of reply to the subject of a story.63 Mr Gray also described how Channel 4 News would approach a story that might involve potential breach of privacy:64

“…if it was a serious allegation of wrongdoing or criminality, we would normally expect to contact the subject of the story in writing, putting forward the claims and the allegations and the evidence we had for what was going to be proposed to be contained in the report, and then give sufficient amount of time for the subject to respond. That can vary, That’s not set down but it could be a matter of days or it could be longer. In some cases, depending on the response from the subject, it can drag on. …That’s part of the way it is and if you have a real good story, you will navigate your way through that.”

2.31 Commenting on the role of Ofcom in relation to Channel 4, and Channel 4 News, Mr Gray told the Inquiry that the Ofcom Broadcasting Code helps to codify the principles and cultural standards that Channel 4 News seeks to uphold. He explained this thus:65

“…through the ITN guidelines, [we] turn [the Code] into practice, and that’s helpful as well, because for the team at ITN, that makes it our guidelines. It’s not an external imposition. This is our culture we’re expressing in the guidelines. It makes it more of a collaborative venture rather than: we’re only doing this because of – it’s a series of hurdles we have to overcome to get there. It can feel like that but it makes the journalism better at the end result.”

Complaints system

2.32 In relation to complaints handling, Mr Battle told the Inquiry that ITN does not receive many complaints through Ofcom. He noted that, on average, ten complaints might be received in the course of a given year, and not all of these would be of a substantial nature.66 Complaints in relation to Channel 4 News are handled by Mr Gray’s Deputy Editor at Channel 4 News, who consults closely with the production team. The complaints are assessed in relation to the report in question with the Head of Compliance, documented as appropriate in consultation with Channel 4. Mr Gray explained that only in serious cases would a complaint be referred to him.67 However, should a complaint be submitted through Ofcom, then the complaint would be handled in accordance with the terms set down by the regulator. Mr Gray explained that Channel 4 News had received remarkably few complaints and, specifically, over the course of five years, “we haven’t actually had a finding against us from an Ofcom complaint except once… and that was a partial ruling against us on an investigation”.68

3. The World Wide Web

3.1 The media landscape, particularly the provision of news, both globally and in the UK has been transformed by the invention and phenomenal development of the Internet. At its simplest the Internet is a system of interconnected computer networks which use a standardised address system to enable the identification of each of the electronic devices that make up the network. Now literally billions of machines are linked. This means that huge quantities of increasingly complex information can be stored and accessed at ever greater speeds. It also means that the services that media providers can offer through the Internet to consumers can be ever more sophisticated, personalised and immediate.

3.2 In terms of access and reach, 74% of adults in the UK have access to broadband, with average actual speeds of 6.8Mbit/s.69 22% of all the time that adults spend engaging with media is spent on the internet, with this figure rising to 30% for those aged between 16 and 24.

3.3 The Internet also enables citizens to access news generated by sources across the world.70 All UK media organisations, whether newspapers, broadcasters or others now have an internet presence. Most of that content is available for free, although some, including some UK publishers, have begun to charge for online content. This free content can be accessed directly where the user knows what they are looking for, or can be found through search engines.

3.4 In addition to the individual websites of the world’s news providers there are news aggregation services. Where a site is acting as an aggregator, it directs users to material created by others. These sites tend to rely on automatic selection through algorithms and usually involve no active editorial involvement by the aggregator. In some circumstances this will involve simply directing the user to the website of the news provider. In others, it involves essentially importing the news report from the original provider to the site of the aggregator. In the latter case this will mean that any associated advertising revenues will go to the aggregator rather than to the news provider. These sites are characterised by the fact that those operating the sites have little or no editorial input to the content of the material that they provide to users, take no responsibility for the accuracy of articles to which their users are directed, and have no role in the newsgathering process.

3.5 Although some news sites are merely aggregators of news, linking to content hosted by other news websites, Google news is different. It is a function within Google that will search for material only through online news content.71 However, the content itself is not generated by Google, nor does Google operate any editorial control over the searched content beyond the algorithms that facilitate the search.72

3.6 In addition to the presence that traditional providers have on the internet, recent years have also seen the growth of completely new approaches to news generation and provision. One example is the rise of blogs and other web-based news, current affairs and celebrity commentary. Blogs and other commentary come in a number of different forms, but are essentially a personal commentary. They can include examples of ‘citizen journalism’ produced by individuals sharing their experience of, and views on, events that occur.

Regulation of the Internet

3.7 In evidence to the Inquiry, the Internet has been described as an unregulated space, in which businesses can avoid the regulation of a given jurisdiction by hosting the content they publish in a different legal jurisdiction. Witnesses to the Inquiry have said that this creates an imbalance with market consequences between what might be written by UK newspapers and what might be published by websites hosted abroad.73 Witnesses have pointed to the publication of photos of, in particular, Prince Harry and the Duchess of Cambridge, which though different in terms of the surrounding circumstances, highlight issues around the existence of different jurisdictions and regulatory regimes as applied to the press and the Internet. The Sun has argued that the ready availability of photographs of Prince Harry on the Internet justified in part its decision to publish those same photographs.74

3.8 To some extent, this is an accurate if very cursory reflection of the regulatory picture with regard to the Internet. However, it is a simplification that ignores what is a more complex picture. Certainly, the very nature of the Internet does not lend itself to regulation. It is a global network made up of a very large number of interconnected, largely autonomous networks, operating from many different legal jurisdictions without any obvious central governing body. Indeed, in many ways this loose and lightly regulated structure has been encouraged by governments and by users as a source of both innovation and growth.

3.9 This does not mean, however, that the Internet is without any governing principles. To ensure interoperability of the constituent networks, as well as consistent policy on addressing, addresses and standards are administered by the Internet Corporation for Assigned Names and Numbers (ICANN), based in California, at which the UK Government is represented.

3.10 Access to Internet services is also regulated in the UK and Europe through telecommunications legislation as regulated by Ofcom. Internet services have predominantly been provided through the national copper wire telecoms network. The transmission of content wirelessly through the national radio spectrum network is regulated through the Wireless Telegraphy Act 2006 and has regulatory impacts for access to the Internet through wireless devices other than computers such as mobiles phones (especially smart phones like the iPhone), and other Internet enabled devices such as tablets (like the iPad and Kindles).

3.11 In addition, just as the general law applies online as it does offline, some forms of online content are also regulated. Broadcast content, known as video on demand when it is made available online, through for example the BBC iPlayer service, or in the case of Channel 4, through 4oD, is regulated by the Audiovisual Media Services Regulations 2009 and the Audiovisual Media Services Regulations 2010, by the Authority for Television on Demand (ATVOD). The necessary powers for the regulation of these services are delegated to ATVOD by Ofcom through a formal designation. These ensure that protections similar to those applied to broadcast content are applied to that same or similar content when made available online.

3.12 In addition to regulation of broadcast and equivalent content through ATVOD, UK Internet Service Providers have also taken a broadly self-regulatory approach to some of the content they host and have applied a limited number of standards to that content. In many circumstances, ISPs and others have cooperated with law enforcement and other agencies to remove illegal content or block access to it. The Internet Watch Foundation (IWF) is an example of this self- regulatory approach. The IWF works closely with ISPs to ensure that webpages, including those hosted outside of the UK, which provide access to potentially criminal content and, specifically, images of child abuse, are reported and removed or blocked at source.

3.13 The current reliance on collaborative approaches and industry self-regulation does not mean that enforcement of UK law online is not possible. However, successful prosecution relies on considerable cooperation across a number of agencies, not least the ISPs and content providers, and is most effective where the alleged act is also clearly criminal in the host country.

3.14 To this end, it is worth noting that Twitter and other social media have cooperated with UK law enforcement in cases of obvious criminality. During the rioting in the summer of 2011, both RIM Blackberry and Twitter worked closely with police and other enforcement agencies to identify those using social media and communications networks to perpetrate or help commit criminal acts. In 2011, Lancashire County Council also worked with Twitter to identify and bring prosecutions against individuals suspected of tax avoidance.

3.15 This relative lack of internet specific regulation is unlikely to change. The Government made clear that it sees the Internet as a key driver of future economic growth and innovation, and has made public its commitment to an open but responsible Internet.75 This should be understood as an internet in which all legal content is available and there is no blocking of sites or discriminatory practice (such as prioritising one very similar product over another), and where the industry works together with Government to deliver solutions to issues particularly in relation to:

3.16 Where legislation has been brought forward in relation to the Internet,this has been in response to legislative changes decided at a European level, intended to protect the privacy of users. Changes to the law have extended the powers available to the Information Commissioner’s Office to ensure that it has appropriate tools to do its job effectively in a digital age.76 These changes have extended the enforcement powers available to the ICO under the DPA into the Privacy and the Electronic Communications Regulations (PECR), and include powers to:

3.17 The changes have been made in response to concerns at a number of high-profile data breaches, some as a consequence of criminal hacking, others by the apparent unwillingness of service providers to pay full heed of data protection legislation (as in the case of the unintentional interception of data from wifi-wireless and remote internet devices by Google in 2009).77

3.18 This has been alluded to in evidence given to the Inquiry. Google stated that privacy online was a matter of growing importance to the company. David John Collins, Vice President of Global Communications and Public affairs for Google, explained that the company’s attitude towards privacy online and related matters has changed considerably with time reflecting both the growth in the use of online services and the changing legal landscape with regard to the internet.78 Mr Collins said:79

“Google has always taken privacy seriously from a very strict compliance position; it’s taken privacy seriously because ultimately the trust that we have with our users is incredibly important.”
In this respect Google has worked hard to improve public awareness of privacy issues online, and in January 2012 launched the “good to know campaign” which actively sought to raise public awareness of privacy tools in relation to email, social network accounts and other online functions that might help users to protect their privacy online.80

4. Blogs and other web-based commentary

4.1 The Inquiry heard evidence in regard to the operation of blogs, online news aggregators, publishers, social network sites and online hosts.

4.2 There are a number of news blogs – the Huffington Post is an early, high profile example of one, which has developed over the years into something much more like an online newspaper – which specifically aim to bring a range of news stories and views on those stories to their readers. Other examples include the Guido Fawkes Blog, which focuses on ‘tittle-tattle, gossip and rumours’ about Parliament;81 the Jack of Kent Blog,82 which describes itself as ‘liberal and critical’; and Popbitch, which is a celebrity newsletter and message-board. Camilla Wright, co-founder of Popbitch, told the Inquiry that her intention in founding Popbitch was to create a publication like Private Eye for the celebrity world that would:83

“... look at the hypocritical gap between how those in the public eye seek to be portrayed and how they really act.”

4.3 There is no single format for these types of sites and individual sites can evolve, and have evolved, a great deal over time. Whereas Popbitch is clear in its ambition to entertain and understands itself to “poke fun” and comment on the “lighter” side of celebrity culture, Guido Fawkes, though ostensibly and in many respects similar, is different in nature. Paul Staines, the founder of the Guido Fawkes website, stated that Guido Fawkes actively seeks to break stories and prides itself on doing so ahead of the main news providers.84

4.4 The type and size of audience attracted by such blogs varies hugely and depends unsurprisingly on the content they carry. For example, Mr Staines told the Inquiry that the Guido Fawkes site generally had between 50,000 and 100,000 readers daily. However, when very big stories are being broken this can rise to as many as 100,000 visitors per hour.85 Mr Staines estimated that between 25% and 30% of his readers reached the site through search engines.86 Popbitch, by contrast, has 350,000 subscribers, whilst Holy Moly, which also covers celebrity news and gossip, serves 6.5 million page impressions a month to 1.6 million people.87

4.5 In addition to the stand-alone blogs and sites described above, many established news providers also use blogs – for example the Guardian has been running a live blog on the Leveson Inquiry since the first of the Inquiry seminars – either for specific events or issues, or just by way of communicating with readers in a different manner. At the other end of the spectrum, many individuals run blogs on matters which are of interest to them, some of which will, from time to time, cover issues of news or current affairs and some which may well break stories if the people writing them are well placed to do so.

4.6 These vastly different sites are all offered to the public in the same way; they all have the same theoretical reach to the entire internet-connected population at the touch of a button (particularly when facilitated by search engines). They are also, with the regulatory exceptions set out above, entirely unregulated, though subject to civil and criminal law in appropriate jurisdictions. However, it is noteworthy that although the blogs cited here are read by very large numbers of people, it should not detract from the fact that most blogs are read by very few people. Indeed, most blogs are rarely read as news or factual, but as opinion and must be considered as such.

Purpose and process

4.7 Ms Wright explained the nature and purpose of Popbitch as a gossip site. She said that she believed that the public had a right to know certain facts about certain celebrities, particularly given the ability of some to “shape and influence people’s lives.”88 Ms Wright argued that it is only right that publishers should bring material to the attention of the public if it brings to light what she described as the “gap between people’s private life and public life .”89 This she argues is not only very much in the public interest but is a reflection of everyday concerns that individuals may have, as well as the reality of celebrities and others putting potential personal or private information into the public domain through Facebook and other social media, that might sit uneasily or indeed at odds with their public persona.90

4.8 Ms Wright acknowledged that this may mean that the line between what is private and what might be made public is fluid and dependent on context:91

“We draw the line, I would say, we look at who is making themselves influential, and if so are they living up to it.”

4.9 Understandably perhaps, for a relatively small operation, the standards of proof deployed by Ms Wright are lower, and the processes different from those that might be found on a print newspaper. Ms Wright said in relation to the corroboration of stories:92

“If it is a contentious or controversial story, I would want to get someone else to back up what they’re saying and try and find if possible, some evidence to support what they’re both saying.”

4.10 Ms Wright also explained that whilst Popbitch may not have formal processes for establishing whether content might be in the public interest or a breach of privacy, the company does consult with and take advice from media lawyers, who have at times provided extracts from the Editors’ Code of Conduct which they perceive might be useful for Popbitch to consider.93

4.11 Much as Popbitch understand itself to provide information to the public that it determines to be in the public interest, Guido Fawkes also prides itself on its ability to deliver stories it understands to be in the public interest, that might otherwise remain unknown. Mr Staines said:94

“I particularly don’t think people in public life, people who are, you know, paid for by the taxpayers, or subject to the voters, should expect the same degree of privacy as a private citizen who has no public life can expect. These people – their character speaks to what the voters need to know about them as politicians, so if they misbehave in their private life – it’s quite common that somebody who will lie to their wife will lie to the voters. That’s an old adage that has some truth to it.”

4.12 Indeed, Mr Staines stated in evidence that he would publish information that he assessed to be in public interest even if that information was the subject of a legally enforceable injunction. He referred in evidence to material made available by his blog which a court had ordered should be removed from the internet.95 This is explored in more detail below.96

4.13 Mr Staines also gave evidence on the standards and editorial processes he deploys with regard to the content he publishes. He said that in many cases he is unable to corroborate stories through a second source:97

“Yeah, quite often there’s only one source in the room who can provide us with information, so we have no choice. We don’t rely on single sourcing from people we don’t know. There has to be some authority to that person or we have to have a level of trust built up over time. If someone came in fresh and was a single source we couldn’t verify in any way whatsoever, I’d be very reluctant to run with it.”

4.14 Mr Staines also made clear that accuracy was as important to the credibility of a blog site like Guido Fawkes as it was for a print newspaper. It is for this reason that the majority of material sourced by Mr Staines was either verifiable or from a trusted source. Only some 10% of material might be from an unknown source.98

4.15 Additionally, Mr Staines told the Inquiry that journalists occasionally provided him with material that an editor may have decided not to publish (that had been spiked), or that might not fit with the overall agenda of the publication in question.99 As such Guido Fawkes provides a valuable vehicle for publication of such content. Guido Fawkes also receives material that journalists want to push further and establish whether the story in question has legs.100

4.16 Mr Staines also stated, in a parallel that he himself has drawn with the former editor of The Sun, Kelvin Mackenzie, that he would run stories that are single sourced if the story was of little consequence, or in keeping with the overall tone of the Guido Fawke s site, namely, that it was gossipy or humorous in nature.101

4.17 Much as the Guido Fawkes site is used as a proxy by some newspapers and a means of running stories that might lead to a newspaper being challenged, Ms Wright said that Popbitch is also occasionally used by journalists from print newspapers in this manner. However, Ms Wright made clear that is a practice that she generally seeks to avoid. She noted that such an approach has not happened for some time.102 Ms Wright was also keen to emphasise that she would only publish such information if it were in the public interest. This, she said, has not yet happened.103

4.18 The Inquiry also heard evidence from the Carla Buzasi, Editor in Chief of the Huffington Post UK. In contrast to either Popbitch or Guido Fawkes, the Huffington Post UK is not a blog built around the knowledge and gossip of a given area, it is an online newspaper employing trained journalists and abiding by journalistic standards as set out in the Editors’ Code of Practice, as well as participating in the system of self-regulation for the press through the PCC.104 The Huffington Post UK also functions as a news aggregator and links to news content hosted on other websites, as well as hosting blogs for the discussion and dissemination of opinion.

4.19 Ms Buzasi gave evidence on the importance of trust to the Huffington Post UK, and particularly to its reputation as a news source. This has informed editorial and management decisions made around training and editorial guidelines.105 It is therefore expected that all stories are verifiable and are not single sourced. However, Ms Buzasi acknowledged that there may be a limited number of circumstances in which single sourcing was acceptable, but it was not the rule.106 A similar emphasis on trust is placed on those news sites that the Huffington Post UK will link to.

Regulation of blogs

4.20 Blogs and other such websites are entirely unregulated. The Huffington Post UK is unique in having opted to subscribe to the PCC. It is the only solely online news provider to have elected to this and did so in September 2011. Ms Buzasi suggested that membership of the PCC was a natural next step for the Huffington Post UK as it had long abided by the terms of the Editors’ Code of Practice. However, she expressed some frustration at that organisation’s lack of consideration for online publications and intimated that the process of joining revealed flaws inherent in the existing system.107 She noted that the Huffington Post UK was eventually categorised by the PCC as a regional newspaper although it is in reality a national online publication with a substantive readership.108

4.21 By contrast, Ms Wright told the Inquiry that although she was aware of the PCC Code she saw no reason for Popbitch to be part of the system of self-regulation through the PCC. Instead, she said in response to questions from the Inquiry that she believed Popbitch ’s own system of internal or personal regulation was more effective and better suited to the needs of the organisation.109 With regard to a future system of regulation for the press, Ms Wright was equivocal as to whether such a system would be something that Popbitch would consider voluntarily signing up to, the detail of that system depending. Ms Wright said that she would need to determine whether that system of regulation would be useful to Popbitch .110

4.22 With regard to the oversight and regulation of content published by third parties, views of the Huffington Post UK to hosted and other user generated content on its site are broadly typical of other hosting sites. The Huffington Post UK does not pre-moderate or edit that content. Indeed, Ms Buzasi has said that:111

“We want to have their personalities shine through on their blogs but there is a framework to ensure that we’re – or our bloggers are complying with the law.”

4.23 Mu Buzasi said that a small number of comments were routed through a filter which may pick up certain word combinations or profanities. These were then directed to a moderator for review.112 Comment that was flagged by users was also directed to a moderator for review.113

4.24 Ms Buzasi made clear that it was her firm belief that micro bloggers and small non-commercial bloggers should exist outside any formal system of regulation. She regards this freedom from regulation as a necessary condition for the nurture of creative talent and encouragement of new media enterprises, particularly if there are substantive costs associated with that system.114

4.25 Google is by some margin the largest publisher of third party content to have given evidence to the Inquiry. Specifically, Google hosts user generated content through its Blogger.com service. The service hosts blogging sites, and now hosts more than 1 trillion words. That total increases at rate of over 250,000 words every minute.115 Its attitude towards the content it hosts is markedly similar to that of the Huffington Post UK. All content hosted through the service must comply with the terms of use. Beyond this, Google does not exercise any editorial control over the content it hosts on its blogger service.116 It does, however, provide a notice and take down service. Google’s legal Director, Daphne Keller, has said that while a blogger service is available only through the .com domain, Google will take steps to ensure that content originating from a given jurisdiction is compliant with local law, if it receives a complaint about the content in question.117

Funding models

4.26 Many blogs sites now run on a commercial basis. The largest blog sites are increasingly funded either in their entirety or in part by advertising, as is the case with both Popbitch and Guido Fawkes. Although the approach to what appears on the website or blog will vary from site to site, the technical costs associated with running a site of this sort are relatively low, and barriers to entry to the market for both new players, be they individuals or much larger firms, are similarly low. Effectively, anyone with access to the Internet can set up a blog and seek to reach readers.

5. Social networking sites

5.1 A social networking service is an online service, platform, or site that focuses on the building and reflecting of social networks or social relations among people who, for example, share interests and/or activities. A social network service essentially consists of a representation of each user (often a profile), his/her social links, and a variety of additional services. Most social network services are web-based, providing means for users to interact over the Internet, potentially through e-mail and instant messaging. Myspace, Facebook, Twitter, LinkedIn and Google+ are all social network sites.

5.2 Although there is limited news provision in the terms that are relevant to this Inquiry on pure social networking sites, all social networks provide opportunities for individuals to disseminate and discuss news, information and comment. Indeed, everyday use of the Internet is increasingly characterised by the use of social networking sites and other social media. Their growth has been little short of phenomenal. Ten years ago there were no social networks; now the largest social networking site, Facebook, has over 800m users worldwide (although Facebook has recently suggested that as many of 100m of these accounts may be either dormant, fake or used for questionable purposes). The rise of Twitter has been similarly rapid. Founded in 2006, it now counts over 100 million active users each month, sending a billion tweets every four days.118 Perhaps most astonishingly (and for this Inquiry of concern to those who may be the subject either of Tweets that breach privacy or indeed the criminal or civil law), is the speed with which a message might be propagated. Colin Crowell, Head of Global public Policy for Twitter Inc, noted that during the 2012 Superbowl, Twitter processed 12,000 tweets per second.119

5.3 Increasingly newspapers themselves not only use the pages of social networking sites to disseminate news, but also provide platform friendly applications, to enable the application to be accessed through the specific social media. However, it is worthy of note that despite their extraordinary growth, as with most blogs, in the main few tweets or social network pages are read by very large numbers of people. Although a very small number of tweeters are followed (though not necessarily read) by very large numbers of people, and such may at times have significant impact (the Inquiry has heard evidence from Stephen Abell of the PCC of the phenomenon of Fry-bombing),120 it should not detract from the fact that most tweets are read by very few people. The television personality and actor, Stephen Fry, one of the most prolific celebrity tweeters has over 5 million Twitter followers.

5.4 Although social networking sites are not obviously in competition with newspapers for audience, revenue or advertising, they may be used to publish information that would not be able to be published by a newspaper in conformity with the standards set by self-regulation. In a practical, though not a legal, sense they might also be used to publish information that a court has ruled should not be published with little likelihood of the publisher being identified and held to account. Indeed, there are clear and very recent examples of this practice that do not need to be repeated here.

5.5 It is in this regard that Twitter has been the focus of some interest to the Inquiry because of the role played by users in identifying individuals who had been the subject of privacy injunctions. Twitter allows members to operate anonymously, or under a pseudonym,121 and it is also possible that the company itself may not know the real identity of any member.122 However, Twitter has told the Inquiry that its rules forbid members from using the service for any unlawful purpose,123 and any material that is found by the company to contravene that policy can be taken down or removed.124

5.6 In this respect Twitter is similar to other social media. Most social networking sites and publishers of user generated content operate acceptable use policies (AUPs) which set down guidelines for user behaviour on those sites and cover issues such as posting of offensive content and bullying. Where a policy is breached, material is removed and in some cases the user’s profile is deleted.

5.7 Most recent trends in social network technology have been towards the concept of “real- time web” and “location based” services. The real time web service allows users to generate content, that is broadcast as it is being uploaded – the concept is potentially analogous to and may indeed come to challenge live radio and television broadcasts as well as traditional print media.

5.8 Indeed, the instant nature of social networking also differentiates it from more traditional media. Rebuttals and denials of allegations can take place instantly, helping if not to kill a story at least to provide the subject of the story with a voice and make users aware that the veracity of the allegation or story may be in doubt.

Consideration of the law

5.9 The major websites and providers of internet services, be they social networking sites or providers of other services or functionality, tend to operate under US law if that is where the company is based. However, as witnesses to the Inquiry representing Internet firms have sought to make clear, where services are targeted at a given jurisdiction, they will also seek to comply with local law. This can and does lead to conflicts of law, for example, where issues such as consideration of privacy and other related matters conflict with rights under the First Amendment of the American Constitution.

Blogs and the consideration of the law

5.10 The Inquiry has heard much evidence in this regard. Ms Wright said that as Popbitch is published in the UK it abides by general law. This includes making efforts to ensure that content is not defamatory.125 Ms Wright was keen to emphasise, echoing points made by other witnesses representing online publishers and Internet businesses, that Popbitch sought to obey the local law in each of the jurisdictions in which it operated.126 Asked by Counsel to the Inquiry whether she considered the privacy of individuals about whom she writes, Ms Wright said:127

“In era where injunctions have been such a much-talked about thing, that obviously has to be a consideration. I think if I could put it this way, Popbitch is an entertainment product, therefore we are trying to do no more than poke fun in the world of celebrity….. We get a lot of stories in [sic] which we don’t print, which are things like somebody’s gone to rehab, somebody has cancer, or it’s about their children.”

5.11 Ms Wright also said that consideration of privacy issues was more important to Popbitch than it once was. In evidence she referred to the example of Victoria Beckham’s pregnancy, noting that at the time the pregnancy was widely discussed, and that although Popbitch were the first publishers to write about the story, the fact of that pregnancy was no secret. However, Ms Wright has said further:128

“I would be I think since then much more careful about making sure that a pregnancy was beyond twelve weeks before – in this case, this was that as well, but I would be very careful about doing that.”

5.12 Mr Staines provided different and interesting evidence in relation to legal accountability and enforcement, particularly in relation to legal jurisdictions, that illustrates well the problems in respect of the application of national law by online publishers. Mr Staines was candid about this. He said that the servers used by the Guido Fawkes site are located in the USA. The site was previously hosted by Google on the Google free blogger system but, as Mr Staines explained, was moved when Google “became more willing to give in to legal threats.”129 Mr Staines said by way of further explanation:130

“I thought it be a good moment to switch from them to a hosting provider who was robust and would stand up for my First Amendment protections.”

5.13 This switch from Google to another blog host was made in order to make it more difficult for content Mr Staines had published to be challenged through the UK courts; he cited the experience of Wikileaks as a sufficient justification for this course of action.131 Further, Mr Staines stated that although he had been threatened with legal action on a number of occasions, no such action had been successfully prosecuted. Mr Staines also made clear that he has ignored UK Court decisions without adverse consequences.132

5.14 He gave the specific example of a memorandum prepared by Merrill Lynch setting out concerns at the future prospects of Northern Rock which suggested that the eventual cost to the taxpayer might be as much as £50bn.133 Mr Staines said that he uploaded the memo in question onto a number of overseas servers to circumvent injunctions issued by the law firm Carter Ruck.134

5.15 The attitude of Mr Staines revealed in evidence with regard to compliance with national law was unique among witnesses from online businesses who have given evidence to the Inquiry. More typical were those of the Huffington Post UK, which have already been partly addressed. Ms Buzasi was clear that the Huffington Post UK abides by UK law. Under the terms of use, users of the Huffington Post UK comment boards and blogs must undertake not to post anything that might be illegal. Users must also provide personal details, which means that legal orders or proceedings can be enforced should either legal action be brought or an injunction be imposed.135 However, she also explained that the Huffington Post UK was not able to review and “pre-moderate” potentially libellous or defamatory comment, a theme that was taken up by other witnesses to the Inquiry.136 Ms Buzasi suggested that the inability of the Huffington Post UK to make adjudications in such matters is, to some extents, mitigated by provisions made for the correction of inaccurate or potentially actionable material through the prominent provision of “send a correction button”; the site also operates what Ms Buzasi has referred to as a “robust” notice and take down process.137

6. Other providers

6.1 Mr Crowell made clear that it would be both technologically and physically impossible for Twitter to pre-moderate the user-generated content hosted by Twitter, in this case tweets, and adjudicate on their potential illegality.138 In this respect, the position of Twitter is markedly similar to that of both Google and Microsoft in relation to user-generated content. Articulating the position of Google with regard to compliance in this area, Ms Keller explained that given the volume of material generated by third parties that Google either indexes, searches or hosts depending on the relevant Google service or function, it is impossible for Google to pre-moderate that content in any way or, to make adjudications as to whether content is legal or not.139 Ms Keller has made clear that both the volume and nature of the content make such decision making practically impossible. She told the Inquiry that such filtering is also technically impossible and would also run the risk of legal challenge if content that had been posted entirely legally were removed inadvertently as a consequence of such filtering.140

6.2 However, Mr Crowell was keen to stress that recent technological changes since the start of 2012 have enabled Twitter to withhold tweets within a given jurisdiction. This will enable Twitter to comply more effectively with differences in local law in different jurisdictions.141 Mr Collins also provided further evidence of Google’s evolving policies with regard to compliance with national law. He said that Google services targeted at a particular country comply with local law and that this applies as much to privacy and other related matters as it does to other areas of law.142 By way of example, Mr Collins explained that Google policy on privacy in the UK was shaped through an ongoing dialogue with the ICO, which had provided relevant advice.143 Ms Keller explained that the use of the .co.uk domain name underpinned the provision of services to the UK as well as compliance with the local law.144

6.3 Ms Keller also explained the number of routes through which an individual might seek to remove material made available through Google services. It is notable, and indeed unfortunate – although given the technological constraints understandable – that in each example the burden of effort lies with the injured party. Ms Keller explained that webmasters (those who author and maintain websites) are able to request that their site is not indexed and will therefore not appear in searches.145 Ms Keller also said that this particular approach is in the view of Google the most effective means of getting content removed. Google also provides a “remove content from Google” service, which users may use to alert staff to potentially illegal content which will be taken down if it is understood not to comply with UK law.146 Google has adopted a similar, expedited approach in relation to content that is in breach of copyright.147

7. Enforcement

7.1 Despite the efforts made to comply with national law, it is clear that the enforcement of law and regulation online is problematic. Although the law with regard to online content is clear, and UK hosted content is by and large compliant, the ability of the UK to exercise legal jurisdiction over content on Internet services is extremely limited and dependent on many things (explored below) which are rarely aligned. These include: the location of the service provider; the location of the servers on which material is held; and international agreements and treaties.

7.2 Internet Service Providers offering services to UK customers will block content that has been declared illegal. They are, however, understandably unwilling to make decisions on whether content may or may not be illegal or to take decisions where there are grey areas in law. This has been particularly apparent in cases of alleged defamation, where ISPs and content providers have historically been unwilling to remove content without a court decision. Whilst the position of the ISPs and content providers may be understandable – issues clearly arise as to their ability to decide on the veracity of an allegation – in some cases considerable damage may have been done to the subject of those allegations before a judgment has been reached and the defamatory content consequently removed.

7.3 Most successful attempts to induce service providers of any sort to take enforcement action in relation to content are either through agreement, or dependant on case-specific court orders. In his evidence to the Inquiry, Mr Crowell (as well as representatives from Microsoft and Google) said that Twitter would enforce orders made by UK courts, in so far as they might apply to UK users, on a case by case basis.148 In practice, this means that for Twitter to remove a defamatory tweet that was re-tweeted, a court order would be needed in relation to every relevant tweet by every individual unique user who repeated that defamatory content.149

7.4 Ms Keller has also made clear that, in cases of alleged defamation, it is Google policy in most cases only to remove material from a given service if the complainant was able to provide a legal judgment in support of their claim. However, Ms Keller acknowledged that while such material would be removed from a UK search, it might still be found through Google.com if the material in question was not in breach of American law.150 This means in practice that, in order to have material removed from searches in multiple jurisdictions, a legal application would have to be made in each relevant jurisdiction. Ms Keller said in this respect that she hopes: “this would not be a difficult thing to do.”151 It is notable that much as Twitter requires a court order in respect of each individual user, Google require such an order in relation to individual URLs.

7.5 Both examples are also in counterpoint to the number of instances where UK legislation and decisions by UK courts are simply ignored, as they are unenforceable. Content providers headquartered in the United States will also strenuously defend rights to free speech under American law and indeed may themselves be at risk of prosecution if they remove allegedly defamatory or potentially illegal content ahead of a court decision. This position is not without legal underpinning under European Law. Under Article 15 of the European eCommerce Directive which sets out the regulatory framework for trade through the Internet, ISPs are not legally responsible for the content they carry over their pipes.152 This defence is known as mere conduit. Mr Collins of Google described the apportionment of responsibilities between publishers and host thus:153

“Firstly, there is a very clear set of regulations which apply to technical intermediaries hosting platforms. It’s called the E-commerce Directive and it does place a number of responsibilities on us around removal of content. I know that you’re very aware of it. It’s important to make the distinction between – in the system that you’ve outlined, it’s important to make the decision between someone who provides a hosting platform for other people to create and post content, and a publisher. Blogger.com or other products that are – attempt to form a community around the product, YouTube, et cetera, they don’t make us a publisher; we remain a hosting platform. So I think whatever system that you devise, it’s important to retain that distinction, because not only is there already a very clear set of regulations around those principles placing responsibilities on us, but it retains a very essential balance online, which is: where does that responsibility lie? We have our responsibilities, which we fulfil; the person that produces and uploads that content has his or her responsibilities as well.”

7.6 Mr Staines also described with some colour the difficulties that an individual or company might encounter in trying to have content removed from the internet:154

“I think it is impossible for them to do anything, I would basically upload it to a free hosting service after the close of business hours, so if the law firm was contacting Yahoo India, they would find that there would be no one at home and it would be up on that website until the next day at the very least.”

8. Press photographers

8.1 Press photographers are another source of news material. Their actions and conduct are covered elsewhere in this Report as appropriate, so I will restrict myself to a very few comments in this regard. Based on figures provided by the British Press Photographers Association (BPPA), it is estimated that there are around 800 press photographers in the UK. Of these around a quarter are directly employed by newspapers or agencies, around 12% are employed on fixed term or rolling contracts, around 18% work through agencies as freelancers and the remaining 45% are entirely freelance.155

8.2 Those photographers who are directly employed, whether by newspapers or by agencies, might expect to be subject to the Editors’ Code of Practice. Indeed, the Inquiry has been told by witnesses both from picture agencies and newspapers that the expectation is that press photographers would abide by the terms of the Editors’ Code of Practice.156 Those who operate on a freelance basis are not subject to any regulation beyond the law, as it applies to everyone.

8.3 Much of the work undertaken by press photographers involves arranged photo shoots of one sort or another. However, press photographers obviously do also work by waiting for potential subjects and hoping to get pictures of them. This inevitably gives rise to the risk that photographs will be taken in situations where the subject might prefer not to be photographed and, as is made clear157 elsewhere in this report, may even be subject to harassment or distress.

8.4 The death of Diana, Princess of Wales,158 in an accident that occurred while the car in which she was travelling was being pursued at high speed by a number of press photographers in 1997 brought the role and behaviour of press photographers very much to public notice. Since then, UK newspaper editors have been committed by the Editors’ Code of Practice not to publish images that are taken in contravention of the Code. The responsibility for checking whether the Code of Practice has been breached in relation to any specific image sits with the newspaper concerned.

8.5 The market for celebrity and news photographs is now a global one. A picture that might be turned down by a UK editor as not being consistent with the Code might well be accepted by non-UK newspapers, broadcasters or websites. Recent cases involving Prince Harry and the Duchess of Cambridge are instructive and are described elsewhere in this Report.159 The largely freelance nature of the press photography business means that there is a high level of competition among photographers to get the best picture.

CHAPTER 4
PLURALITY

“I think sometimes – a lot of the time it isn't necessarily the size of the newspaper group, it's the strength of voice of the paper. I mean, actually, the Daily Mail is an incredibly sort of powerful voice in the nation's politics because it's a very strong product, it puts its voice very powerfully, and that's not related really to its market power, it's [related] to the way it pushes its agenda.”1

1. What is plurality and why does it matter?

1.1 There is a generally held view that the media is of central importance for a healthy, well- informed democracy and therefore control of the media should not be concentrated in too few hands. This is based on a concern that a small number of media owners could have too much influence in terms of content and, in particular, agenda setting. Policy and legislation have been designed overall to achieve a range of different media “voices”, which enable consumers to have access to a range of views, which helps them to actively participate in the democratic process in the widest sense.

1.2 The Communications Act 2003 takes two different approaches to the nature of the plurality that is considered important. The first is the need for a “sufficient plurality of views in newspapers in each market for newspapers”2 and the second is the need for “there to be a sufficient plurality of persons with control of the media enterprises serving [every] audience [in the UK] .”3 The difference between a plurality of views and the plurality of persons with control of media enterprises is clear. The rationale as to why the first should apply in relation to newspapers and the second in relation to media enterprises is less clear. In any event, the media market has moved on considerably since the Communications Act 2003 was passed and the nature and number of media enterprises serving markets in the UK has changed. Witnesses to the Inquiry took various approaches to what they understood by the need for plurality in the media.

1.3 Ofcom defines plurality with reference to the desired outcome of a plural market:4

  1. “ensuring there is a diversity of viewpoints available and consumed across and within media enterprises;
  2. preventing any one media owner or voice having too much influence over public opinion and the political agenda.” (emphasis added)

1.4 Professor Chris Megone, Professor of Inter Disciplinary Applied Ethics at the University of Leeds, described both the benefits that a free press brings and the risks of a few voices dominating the public debate:5

“freedom of individual expression may be served to some extent by a free press in that such a press provides a vehicle for the expression of opinion in leader and comment columns. Such free expression can contribute to informed citizens through its role in the cut and thrust of ideas. However clearly there are only a limited number whose ideas are expressed in this way, and even with letters pages, and invited contributions from politicians and the like, the number able to express themselves is very small.”
and later

“This argument could be taken further and it could be said that the public interest in freedom of expression can even be adversely affected by a free press, if certain other conditions hold such that some voices get much more prominence than others. In those conditions the power of the press as a medium of expression may lead to certain views dominating the public sphere and other views being squeezed out. So the public interest in freedom of self-expression, or freedom of opinion, is served by a free press, but only to some extent, and only if the structure of the press allows for sufficient diversity.”

1.5 This approach to both the diversity of views available and the influence wielded seems to be generally accepted. Robin Foster, an independent adviser on regulatory policy and strategic issues in the communications sector, described two aspects of plurality that he considered important: to make sure that there was a reasonable wide range and diversity of news and opinion available to the public, and to make sure that no single one of those news providers became so powerful that they had too much of an influence on opinion-forming and the political agenda.6 Professor Steven Barnett, University of Westminster, said that plurality must encompass both a sufficient number of competing media enterprises and (separately) the prevention of an unhealthy accretion of power by any single enterprise.7

1.6 The rationale for requiring plurality within the media and the different dimensions of it that are important seem uncontroversial. However, it is also necessary to say what the scope of media plurality should be. Ofcom notes that both they and other regulatory authorities have concentrated to date on news and current affairs, but that this is not required by the legislative framework.8 There are arguments for broadening the scope, which are considered later in this Report.9 Historically, regulators have not really looked beyond news and current affairs when considering plurality.

2. Approaches to securing plurality

2.1 Attempts to secure plurality have tended to rely on four complementary approaches. First, where broadcast media are concerned, it can be argued that the existing rules around accuracy and impartiality should counter concerns about concentration of ownership. The Department of Culture, Media and Sport (DCMS) argues that this is true up to a point, but it is difficult to regulate the coverage and prominence of stories. Therefore, there is still considerable scope for influencing the agenda by the extent to which particular stories are covered or not.10 A wider range of media owners makes it harder for one or two large owners to distort the agenda in a way which suits their own purposes.

2.2 Second, there have been specific rules constraining the ability of any one person or company to own too large a proportion of the broadcast market, and restrictions on the extent to which any one person or company can own both a national newspaper and a national terrestrial television channel or a local newspaper and a local television channel. These rules and how they have changed over time are outlined below.

2.3 Third, there is general competition law. One of the key aims of competition law is to ensure that no company has such a position of power within a market that it can abuse that power, for example to force competitors out of the market to the detriment of consumers. Competition law is designed to reduce concentration of market power and, therefore, will generally produce outcomes which support plurality. However, competition rules are also designed to prevent abuse of market power; it is possible that an owner could have a dominant position which he did not abuse in competition terms (and which will therefore be allowed under the competition regime) but which was deemed undesirable in relation to plurality. It is also likely that competition rules are less able to prevent unacceptable levels of cross-media ownership where each market may be seen as distinct for competition purposes. Yet this form of ownership is sometimes seen as being of most concern because it could allow an owner to promote an agenda across a number of platforms which could be more influential than involvement in just one. This was the position originally taken by the Government in relation to media mergers when the 2003 Communications Bill was published.

2.4 The process by which that position changed and how the current provision in the 2003 Act relating to media mergers was introduced is fully documented later in the Report.11 The result was that the Communications Act 2003 includes provisions to allow the Secretary of State to take public interests considerations relating to plurality into account in proposed media mergers.

2.5 The media ownership regime takes as its starting point the position that a variety of owners will represent a variety of different viewpoints. This cannot be taken as axiomatic as owners could have a very similar set of views and values. It is nevertheless likely that the greater the number of owners, the greater number of views. Moreover, it is difficult to regulate for different points of view, so ownership restrictions act as an effective “proxy” for plurality.12

2.6 Media ownership rules act as a constraint on the normal workings of the market, so successive Governments have thought it important to strike an appropriate balance between the needs of plurality and the needs of the wider economy, and to ensure that media ownership rules are no more burdensome than necessary. As more and more services become available on different platforms, concerns over ownership have diminished to some extent and greater liberalisation has been permitted. The DCMS “Consultation on Media Ownership Rules” in November 2001 said:13

“The current ownership rules are being overtaken by a changing media landscape. In devising new, forward-looking legislation, we have two main aims. We want to encourage competition and economic growth, by being as deregulatory as possible. However, we must also allow the media to continue to perform its vital role in democratic society, as a forum for public debate and opinion.”

3. The history of media ownership rules in the uK from the 1990s

Legislative background

3.1 DCMS has very helpfully provided a detailed history of the Media Ownership Rules in the UK from the 1990s to the most recent developments; this can be viewed as part of the evidence submitted to this Inquiry.14 For the purposes of the Report I merely summarise the key points.

3.2 The constitutional framework for UK commercial terrestrial television and local radio sectors during the 1980s was provided by the Broadcasting Act 1980 and consolidated in the Broadcasting Act 1981.15 The Independent Broadcasting Authority (IBA) had the function of providing television and radio services additional to those of the BBC. It therefore acted as both broadcaster and regulator. It did this by entering into contractual arrangements with ITV and Independent Local Radio franchisees, whereby the contractors agreed to supply programmes for their regions and the IBA agreed to transmit them. The IBA had wide powers to preview programmes and approve schedules in advance of transmission. The issue of ownership restrictions did not therefore arise as providers of commercial TV and radio services were not owners of licences but contractors to the IBA.16

3.3 The Broadcasting Act 1990 made significant changes to this regime by abolishing the IBA and establishing the Independent Television Commission and the Radio Authority instead. The main effects of the Act were as follows:17

  1. The previous contract-based regulatory system was replaced by a licensing system, with each licence subject to certain conditions and penalties for non-compliance;
  2. Licences for certain services were to be awarded by the ITC and RA through competitive tender to the highest bidder after a quality threshold and sustainability test had been passed, except in exceptional circumstances;
  3. Cable and satellite programme licences were to be issued on compliance with the ITC codes’ consumer protection requirements;
  4. Channel 4 was to be provided by a new non-profit making body, the Channel Four Corporation, under licence from the ITC; and
  5. Provision was made for the licensing of a new terrestrial television service, Channel 5 (which came to air in 1997).

3.4 The Broadcasting Act 1990 introduced ownership restrictions that licences could be held and traded. It also introduced an upper limit on any person owning more than two Regional Channel 3 licences.18 The Broadcasting Act 1996 imposed a limit of one licence where the licence-holder’s total audience share was over 15%, and provided that a national licence could only be held for either Channel 3 or Channel 5.19

3.5 The Communications Act 2003 repealed the two rules which prevented the joint ownership of National Channel 3 and Channel 5, and removed stand-alone accumulation limits for all television licences. ITV plc (which resulted from the merger of Carlton and Granada in 2004) now holds all but three of the 15 Regional Channel 3 licences (those being UTV and Northern and Central Scotland).20

Provision of broadcast news

3.6 Specific controls were introduced to ensure plurality of the provision of broadcast news. The Broadcasting Act 1990 allowed for the ITC to nominate news providers who would be eligible to provide news programmes for holders of Regional Channel 3 licences (‘nominated news providers’). It was only possible to hold 20% of one nominated news provider, and each nominated news provider was only permitted to own up to 50% of a Regional Channel 3 licence (ie 50% of any company holding a Regional Channel 3 licence). The Broadcasting Act 1996 then made further provision for all holders of Regional Channel 3 licences to, as far as possible, appoint the same (single) news provider (‘the appointed news provider’).

3.7 The purpose of this provision was to ensure that high quality national and international news was carried across all Channel 3 regions at peak times by a single news provider. This was needed because Channel 3, unlike the BBC, was not a single network, but made up of a number of Channel 3 regions under different ownership. By requiring all Regional Channel 3 licence holders to select the same nominated news provider, from providers nominated for that purpose by the ITC, the rules guaranteed a nationwide competitor to the BBC’s news services. In the Government’s view, this competition served to underpin the impartiality of both services, guaranteeing plurality for viewers. Eventually the Communications Act 2003 lifted all restrictions on the ownership of nominated news providers, while retaining the requirement for all Regional Channel 3 licence-holders to appoint the same nominated news provider.21

Digital TV services

3.8 The Broadcasting Act 1996 introduced the licensing regime for digital TV and, at the same time, introduced certain ownership limits in relation to the number of digital licences that could be held. These rules were removed by the Communications Act 2003, consistent with its overall deregulatory approach, so there are now no explicit ownership rules in respect of digital TV services.22

Satellite and cable TV services

3.9 The Broadcasting Act 1990 placed no restrictions on cable and satellite licences. This may well have been because these services were not subject to the same spectrum constraints as analogue services. The Act did place requirements on original programming in respect of direct satellite services (DBS) holding UK licenses for broadcasting on UK frequencies. No such requirement was placed on the holders of other satellite licenses (non-DBS).23 In practice, this meant that British Satellite Broadcasting was subject to this requirement, whilst Sky was not, giving a commercial advantage at the time to Sky in a market that proved not to be sufficient to support two satellite broadcasters.

3.10 The Broadcasting Act 1990 also placed different ownership restrictions on DBS and non- DBS satellite services. National newspapers could not hold more than a 20% stake in a DBS broadcasting satellite channel. However, no such restriction was placed on newspapers owning non-DBS licences. The Government of the day explained that this was because the number of DBS licences was restricted by international agreement to five, whereas the number of non-DBS licences was not restricted and was likely to grow significantly. This made ownership of one or more such channels less of a significant issue in plurality terms.24

Radio Analogue local radio

3.11 The Broadcasting Act 1990 placed an upper limit on ownership of 20 analogue local radio licences. In addition there was a calculation based on coverage area designed to ensure a minimum of seven owners across the UK. The Communications Act 2003 introduced a new system that would ensure at least three local owners in any area in addition to the BBC. This was subsequently changed to secure at least two, rather than three, local owners in addition to the BBC. Where there were only one or two local radio stations in an area all ownership restrictions were removed (subject to the local cross media ownership rule designed to ensure that there were not total local monopolies). Following a report from Ofcom in 2009, all local radio ownership rules were repealed by the Media Ownership (Radio and Cross Media) Order 2011.25

Analogue national radio

3.12 The Broadcasting Act 1990 placed restrictions on one person holding more than one of the three national analogue commercial radio licences. This rule was removed in the Communications Act 2003.26

Digital radio

3.13 Under the Broadcasting Act 1996, a person was limited to one digital service licence or 15% of the total audience points (whichever was the higher) and was also disqualified from providing more than one non-simulcast local digital sound programme service on a single multiplex, unless there was another multiplex operating in the same geographical area. Following the Communications Act 2003, these rules were replaced by a new local points based regime; this mirrored the provisions of the analogue regime by placing a limit on digital radio licences of 55% of the points available in an area.27

Specific prohibitions on licence holding

3.14 There are restrictions on the holding of broadcasting licences by certain types or classes of owners. Historically there have been prohibitions on religious bodies holding broadcasting licenses. Over recent decades those restrictions have been significantly reduced, although religious bodies still cannot hold licences for Channel 3, Channel 5 or any national analogue radio licence.28 The Broadcasting Act 1990 prevented local authorities from holding broadcasting licences. The Communications Act 2003 now allows local authorities to hold broadcast licences for information purposes, and puts in place safeguards to prevent this from being exploited for political purposes.29 The Broadcasting Act 1990 also prevented political parties from holding broadcasting licences (as there were concerns that they could not run a broadcasting company with sufficient impartiality). This restriction remains in place.30

3.15 The Broadcasting Act 1990 additionally prevented advertising agencies from holding broadcasting licences and this restriction has continued.31 The Broadcasting Act 1990 also introduced some foreign ownership restrictions to non-European Economic Area (EEA) countries (it was not permitted to place restrictions on EEA companies and individuals), which were expanded upon by the Broadcasting Act 1996. Non-EEA companies could hold certain licences including for cable and satellite services. In 2002 the Government consulted on removing these restrictions and the matter was the subject of extensive debate. In the event, in circumstances fully described later in the Report,32 the Communications Act 2003 did remove the restrictions and there is now no restriction on foreign ownership of any broadcasting licence, subject, of course, to other ownership restrictions.33

Cross media ownership

3.16 The position under the Broadcasting Act 1990 was:34

  1. National newspaper owners were tightly limited in their holdings in terrestrial TV and radio, and in domestic satellite broadcasters.35 Within each category they could hold up to 20% of one licence, and then up to 5% of any others. They were allowed full control of non-domestic satellite broadcasters “in order to encourage investment in an uncertain and high-risk enterprise”. (By 1996 there were no domestic satellite broadcasters and the largest non-domestic satellite broadcaster was BSkyB);
  2. Local newspaper owners were less tightly controlled, in being allowed to own regional TV or local radio broadcasters, provided there was no significant overlap between the licence area and the paper’s circulation area;
  3. National TV and radio (and regional Channel 3) broadcasters were limited to a 20% stake in national newspapers and non-domestic satellite licences; and
  4. There were no cross-media restrictions on ownership cable services (other than that satellite providers could not own more than 20% of a terrestrial TV or National Radio licence).

3.17 The Communications Act 2003 revised these rules:

  1. Retention of the national rule concerning cross-media ownership between newspapers and ITV. This was expressed as follows:
    1. no one controlling more than 20% of the national newspaper market may hold any licence for Channel 3;
    2. no one controlling more than 20% of the national newspaper market may hold more than a 20% stake in any Channel 3 service; and
    3. a company may not own more than a 20% share in such a service if more than 20% of its stock is in turn owned by a national newspaper proprietor with more than 20% of the market.
  2. Retention of a parallel local rule: no one owning a regional Channel 3 licence may own more than 20% of the local/regional newspaper market in the same region;
  3. Stricter application of the local radio ownership rules where potential owners had other media interests. The effect was to ensure that, in these cases, there would be a minimum of three media owners in each area across TV, newspapers and radio;
  4. A local cross-media rule (the “local monopolies” rule) designed to ensure that there were no complete monopolies in areas with only one or two local radio stations; All other cross-media ownership rules were repealed.

Review of ownership rules

3.18 The Communications Act 2003 requires Ofcom to review all media ownership rules at least every three years. Ofcom makes any recommendations for further reform to the Secretary of State, who can amend or remove rules by secondary legislation. The first review in 2006 recommended no change.36 In its second report in November 2009,37 Ofcom concluded that that national “20/20” rule should be retained and that the local cross media ownership rules should be liberalised so that the only restriction remaining would be on ownership of all three of: local newspapers (with 50% plus local market share); a local radio station; and a regional Channel 3 licence.38 According to Ofcom:39

“this liberalisation will increase the flexibility of local media to respond to market pressures. Consumers still rely on television, radio and press for news, so going further to complete removal of the rules could reduce protections for plurality.”

3.19 On 8 July 2010, the Secretary of State asked Ofcom to revisit its advice on retaining the “local monopolies” rule. Ofcom replied on 29 July and published a fuller version of the reply in August.40 It recognised that there had been some changes in circumstances since the original report but that a decision on whether to remove this one remaining local rule “is a matter of judgement and one which is rightly made by Government and Parliament”. Having considered the matter further, the Secretary of State concluded that the remaining rule should also be removed; this was given effect by the Media Ownership (Radio and Cross Media) Order 2011.41

3.20 The Government’s view was that local media ownership rules (for television, radio and newspapers) placed unnecessary limitations on ownership within commercial media; that the rules were no longer appropriate in a converging digital world; and that removing regulatory barriers would help established industries adapt to new environments. The deregulation of the local media ownership regulations now enables partnerships between local newspapers, radio and Channel 3 television stations to promote a strong and diverse local media industry.42

Media plurality public interest test

3.21 The process by which the media plurality public interest test was inserted into the Communications Bill, and the rationale behind it, is also fully outlined later in the Report.43 These provisions mean that the Secretary of State can ask Ofcom and, if necessary, the Competition Commission to investigate any merger which could have a damaging effect on plurality, diversity or standards.44

3.22 In applying the test the Secretary of State takes into account the need for:

  1. a sufficient plurality of persons with control of media enterprises serving any audience;
  2. a wide range of high quality broadcasting that appeals to different tastes and interests; and
  3. a genuine commitment to Ofcom’s standards code.

3.23 The Government produced further guidance on how the public interest test would be operated in practice. Partly due to Iobbying from industry, Ministers indicated that they were not minded to exercise these powers where media ownership rules continued to apply or where, before the passage of the Communications Act 2003, no media ownership restrictions applied.45

3.24 The request to Ofcom is triggered by an intervention notice issued by the Secretary of State which specifies a ”media public interest consideration ’’.46 A media public interest consideration is any consideration which, at the time of the giving of the European intervention notice concerned, is specified in s58(2A) to (2C) of the Enterprise Act 2002 or, in the opinion of the Secretary of State, is concerned with broadcasting or newspapers and ought to be specified in s58 of the Act (ie would need to be “finalised” by statutory instrument).

3.25 The currently recognised media public interest considerations are:47

  1. s58(2A): the need for accurate presentation of news and free expression of opinion in newspapers;
  2. s58(2B): the need for, to the extent that it is reasonable and practicable, a sufficient plurality of views in newspapers in each market for newspapers in the UK or a part of the UK;
  3. s58(2C)(a): the need, in relation to every different audience in the United Kingdom or in a particular area or locality of the United Kingdom, for there to be a sufficient plurality of persons with control of the media enterprises serving that audience;
  4. s58(2C)(b): the need for the availability throughout the United Kingdom of a wide range of broadcasting which (taken as a whole) is both of high quality and calculated to appeal to a wide variety of tastes and interests; and
  5. s58(2C)(c): the need for persons carrying on media enterprises, and for those with control of such enterprises, to have a genuine commitment to the attainment in relation to broadcasting of the standards objectives set out in s319 of the Communications Act 2003. These require, among other things, “that news included in television and radio services is reported with due impartiality and the impartiality requirements of s.320 are complied with” and that news is reported with “due accuracy”.
Paragraph 7.24 of the guidance issued by the DTI identifies the following as relevant to this question: previous compliance with Ofcom standards, the behaviour of the media owner’s other broadcasting enterprises, behaviour in other jurisdictions and compliance with other standards (including under self-regulatory regimes).48

3.26 An enterprise is a media enterprise if it consists of or involves broadcasting;49 but where the public interest concern is that as set out in s58(2C)(a) and a merger involves only one broadcasting company, a merger is still a media merger of media enterprises if the other company is a newspaper enterprise.50

3.27 Where there has been an intervention notice, Ofcom is required to report to the Secretary of State on whether, having regard only to the public interest consideration specified in the intervention notice, it is or may be the case that the merger may be expected to operate against the public interest. It is then for the Secretary of State to determine whether or not the merger should be referred to the Competition Commission for further review and, if necessary, consideration of remedies.51

3.28 There have only been two occasions on which the Secretary of State has issued an intervention notice in relation to a media merger. On both occasions, the public interest consideration was: “the need, in relation to every different audience in the United Kingdom or in a particular area or locality of the United Kingdom, for there to be a sufficient plurality of persons with control of the media enterprises serving that audience”.52

3.29 The first of these occasions, the completed acquisition by British Sky Broadcasting Group plc (BSkyB) of a 17.9% stake in ITV, was a UK merger. Ofcom considered the plurality public interest considerations and recommended a reference to the Competition Commission.53 At the same time, the OFT advised that the transaction was a merger and that it was or may be the case that the merger may be expected to result in a substantial lessening of competition.54 The Secretary of State referred the case to the Competition Commission. The Competition Commission considered that the transaction raised competition issues, but not plurality issues, and on its recommendation the Secretary of State required BSkyB to sell shares so as to reduce its holding to below 7.5%. The decision was appealed to the Competition Appeal Tribunal and to the Court of Appeal; the Court of Appeal upheld the Competition Commission’s decision.55

3.30 The second occasion, the proposed acquisition by News Corporation of the shares in BSkyB it did not already own, was an EC merger.56

4. History of the newspaper ownership regime

Before the Communications Act 2003

4.1 DCMS has also very helpfully provided a history of the newspaper ownership regime.57 I draw heavily on it and gratefully acknowledge the work that was put into it.

4.2 Since 1965 there has been a separate regime in place in respect of newspaper mergers. This was first introduced by then Monopolies and Mergers Act 1965, following the Report of the Royal Commission on the Press in 1962 (“the Shawcross report”). Shawcross concluded that control of the press was a matter of particular public sensitivity and that the increasing concentration of newspaper ownership in too few hands could stifle the expression of opinion and argument and distort the presentation of news. The Fair Trading Act 1973 (FTA) subjected most newspaper mergers to a stricter system of control than other mergers. The FTA required the Competition Commission (CC) to look at whether the transfer in question might be expected to operate against the public interest, taking into account all matters which appeared in the circumstances to be relevant. Any such transfer would be automatically void without the written consent of the Secretary of State.

4.3 Proprietors had to obtain prior consent from the Secretary of State for Trade and Industry (as was) before acquiring a newspaper (or newspaper assets) where the total paid-for daily circulation of the newspapers involved was 500,000 or more. The Secretary of State was required to refer newspaper applications to the CC for a detailed report before deciding whether or not to consent to the transfer. Exceptions to this rule meant that the Secretary of State:

  1. could consent to a transfer without a CC reference if he was satisfied that the newspaper was not economic as a going concern and that, if it was to continue as a separate newspaper, the case was urgent (s58(3)(a) of the FTA);
  2. had to consent to a transfer without a CC reference if he was satisfied that the newspaper concerned was not economic as a going concern and that it was not intended to continue as a separate newspaper (s58(3)(b) of the FTA); and
  3. could consent to a transfer without a reference to the CC if he was satisfied that the newspaper being taken over had average daily sales of 50,000 or less (s58(4) of the FTA).

Communications Act 2003

4.4 The Communications Act 2003 was designed to replace the FTA regime with a streamlined and less burdensome process that focused regulatory action on those few newspaper transfers that appeared to raise competition or plurality concerns. Under the Communications Act 2003 there is no longer a requirement for the Secretary of State’s prior consent to newspaper transfers. The new regime applies to all transfers that satisfy the jurisdictional criteria for mergers in the Enterprise Act (broadly speaking, the turnover of the body being acquired exceeds £70m or the merger would result in market-share of 25% or more), meaning that the smallest local newspapers were removed from regulation altogether.

4.5 Where a takeover or merger does not meet the jurisdictional criteria it is still possible for the Secretary of State to intervene under the special public interest regime; this applies in any case where the newspaper to be acquired has a 25% share of a market in a substantial part of the United Kingdom.

4.6 The Secretary of State retains the power to refer those cases that involve the public interest in plurality for wider investigation by the CC. The plurality public interest considerations are set out in s58 (2A) and (2B) of the Enterprise Act 2002 and cover:

  1. accurate presentation of the news in newspapers;
  2. free expression of opinion in newspapers; and
  3. to the extent reasonable and practicable, a sufficient plurality of views in newspapers, in each market for newspapers in the UK or a part of the UK.

4.7 Where there has been a reference to the CC, it will make recommendations as to any remedies it deems appropriate to meet competition or plurality concerns. The final decision on any action to take with respect to plurality issues rests with the Secretary of State. However, the Secretary of State may seek the advice of Ofcom on the CC’s recommendations on the plurality aspects of the transfer. He can disregard the competition authorities’ proposed solutions to competition problems, but only where the plurality issues justify this course of action: the Secretary of State will decide overall on the basis of a public interest test that will take account of both plurality and competition.

Developments since 2003: local media assessment

4.8 The interim Digital Britain report included an invitation to the Office of Fair Trading to conduct a review of the local and regional media merger regime. The conclusions of this review were published in the final Digital Britain report. The OFT broadly considered that the existing merger framework was sufficiently robust and flexible, but recommended that a number of small changes would be advantageous. This included amending OFT guidance to ensure that, where a local media merger raised prima facie competition issues, the OFT would ask Ofcom to provide a Local Media Assessment (LMA) covering relevant factors arising from their understanding of media markets. The OFT subsequently revised their Jurisdictional and Procedural Merger Guidance accordingly.

4.9 Ofcom has to date conducted one Local Media Assessment, concerning the proposed acquisition by Kent Messenger Group (KMG) of seven newspaper titles owned by Northcliffe Media. Ofcom provided its Local Media Assessment to the OFT on 2 September 2011. Ofcom considered that a merger could provide the opportunity to rationalise costs, maintain quality and investment, and provide a sounder commercial base from which to address long-term structural change, for example by expanding the availability of online and other digital local services. It also said that these potential benefits needed to be weighed against any potential customer harm resulting from reduced competition identified in the OFT’s overall assessment. Despite this, on 18 October 2011, the OFT referred the proposed merger to the Competition Commission, and the CC cancelled its inquiry after KMG announced it was abandoning the proposed acquisition as a result of the referral and some of the titles concerned were closed. According to KMG “The costs and time required for a full Competition Commission review would be completely unreasonable for a business of our size and for a deal of this scale.”58/p>

CHAPTER 1
THE HISTORICAL BACKGROUND

1. Introduction

1.1 In order to understand the present position in relation to press regulation, it is necessary to examine what has happened in the past. This chapter of the Report examines the content and context of the three Royal Commissions into the British Press undertaken since the Second World War, the Younger Report into Privacy of 1972, and the two reports of Sir David Calcutt QC into privacy and the press published in 1990 and 1993. Taken together, these form the formal public policy response to concerns with the press, press standards and the behaviour of journalists and others acting on behalf of newspapers and their employees, in the post-war period.

1.2 It can be argued that the findings of the three Royal Commissions as well as the reports of Sir David Calcutt not only help to elucidate a pattern of press behaviour that remains pertinent to the work of this Inquiry, but also set out a series of attempts to find a solution to problems that remain broadly unchanged and unaddressed. Indeed, it has been contended by some witnesses to the Inquiry that the six documents that form the backdrop to this chapter bear telling testament to a misplaced faith in the ability of the industry to develop and lead self-regulatory systems capable of offering appropriate real redress to those who have been wronged, and of constituting a sufficient solution to problems of unethical and unlawful behaviour in the newspaper industry. In this regard, the Media Standards Trust has said in its submission to the Inquiry:1

“The conclusion… that self-regulation on its own, without any greater independence or enhanced powers, does not provide adequate protection for the public or for journalists - is based in large part on an historical analysis of the continued failure of the various voluntary self-regulatory bodies that have existed since the first Royal Commission on the Press published its report in 1949.”

Some context

1.3 As has been emphasised in this Report on more than one occasion, the British press has a long held reputation for the vitality and quality of its journalism as well as the diversity of voices with which it speaks. Certainly, it has been with something approaching envy that overseas commentators examining the British press both historically and today have been impressed by both its freedoms and the breadth and scope of its journalism. In this regard, it is worth highlighting the very large number of occasions that the Inquiry has been told with real pride by commentators, journalists, proprietors and politicians about the achievements of the British press and the valuable role it plays in the public life of the nation.

1.4 For my part, I do not doubt that, at its best, British journalism is and has historically been world-beating: it has uncovered scandal, reported on significant events, and campaigned on issues of importance with both decency and integrity. Furthermore, it has been made very clear during the course of this Inquiry that journalism of the highest quality is not restricted only to a certain section of the press but is to be found across its many distinct and different parts: not only in the broadsheets but also in the mid-market titles and the tabloids along with the regional and local press, both in print and now also in their online editions.

1.5 Before dealing with the analysis of historical responses to the culture and practices of the press, it is worth restating that the press does not exist in a vacuum. It is subject to other forces. Technological and societal changes have increased the pressures on what is and has historically been an intensely competitive market. The share which the newspaper industry holds of the wider communications market has been steadily eroded, first by radio and then the advent and growth of television. Television has moved from one initial offering by the BBC to the explosion of channels available through the introduction of satellite television services and, further, with the continuation of this trend through the rollout of digital television. The loss of market share has been further exacerbated by the internet and the increasing availability of mixed media services through that medium. Overall, these forces have had an important role in shaping the culture, practices and ethics of the press over decades.

1.6 It should not be thought that the culture and practices that have given rise to the establishment of this Inquiry are in any way new, even if much of the technology which underpins new developments is. Concerns as to the behaviour and practices of the press have been articulated by both private individuals and Governments throughout the twentieth century, and (in one form or another) very much earlier. Indeed, some of the practices and concerns that gave rise to the 1947 Royal Commission into the Press, and in particular those in relation to the breach of privacy of individuals, have been effectively repeated before this Inquiry. Thus, the historical review carried out in this chapter demonstrates a number of common themes; in particular, it reveals not merely consistent and similar complaints over the preceding decades, but also consistent and similar proposed solutions.

2. The royal Commission into the press 1947

2.1 Shortly after the election of the Labour Government in May 1945, the National Union of Journalists (NUJ) passed a resolution which called for the new administration to establish an independent Commission to examine, among other things, structures of ownership and control of British newspapers. The NUJ resolution reflected growing concern about the influence of a small group of newspaper publishers who had substantively increased their share of the national newspaper market in the inter-war period. The NUJ resolution also gave voice to other concerns and called for a Commission to investigate:2

“...with the object of furthering the free expression of opinion through the Press and the greatest practicable accuracy in the presentation of news, to inquire into the control, management and ownership of the newspaper and periodical Press and the news agencies, including the financial structure and the monopolistic tendencies in control, and to make recommendations thereon.”

2.2 The resolution led to the tabling of a motion in the House of Commons that repeated its central concerns. Advanced by members of Parliament who had either worked as journalists or were still employed as such, the motion also made an explicit connection between the growing concentration in newspaper ownership by a small number of proprietors as well as the substantial increases in the profitability of some newspapers since the conclusion of hostilities, and a supposed decline in the quality of British journalism.3 The motion was passed by MPs on the 29 October 1946. It read:4

“That, having regard to the increasing public concern at the growth of monopolistic tendencies in the control of the Press and with the object of furthering the free expression of opinion through the Press and the greatest practicable accuracy in the presentation of news this House considers that a Royal Commission should be appointed to inquire into the finance, control, management and ownership of the Press.”

2.3 In part, the concerns articulated in the resolution of the NUJ and the Parliamentary motion reflected understandable public disquiet at a return to business as usual by the newspaper industry after the war years (which had entailed strict Government control of all content, print as well as the means of distribution). The reversion to a peacetime modus operandi also heralded the return, after the quiescence of the war years, of a number of sharper journalistic practices increasingly unpalatable to the public at large. These were manifest to differing degrees in accusations of inaccuracy and political bias on the one hand and alarm at the intrusion of journalists into the private lives of individuals on the other.5

2.4 However, public indignation at such behaviour was not new; the culture and practices of some parts of the press had been noted as a matter of concern by the immediate pre-war Government-appointed Political and Economic Planning (PEP) group which, in 1938, had formulated the first significant proposal for formal self-regulation of the press.6 Among other things, the PEP group’s final report argued for the establishment of a voluntary Press Tribunal led by an independent Chairman and supported by a panel of experts drawn from the newspaper industry. This, the report suggested, should consider and mediate complaints made by members of the public about the press. The outbreak of war drew an end to any further work to achieve this end.

2.5 The Commission was granted a broad remit by the Government of Clement Atlee and was charged with seeking answers to a number of questions that went further than the concerns that have been outlined above. The Government asked that the Commission investigate:7 8

2.6 When the Royal Commission reported in 1949, it made a number of damning findings. It found that there had been “a progressive decline in the calibre of editors and in the quality of British journalism” which, it argued, if not addressed would undermine not only the freedom of the press itself, but also the welfare of the country at large. The Commission recommended that a system of self-regulation should be established, built around a “General Council of the Press”. The Commission was unambiguous in its consideration of statutory controls which, it argued, would unacceptably restrict the freedoms of the press. It said that it was necessary:9

“to safeguard the freedom of the press; to encourage the growth of a sense of public responsibility and public service amongst all engaged in the profession of journalism [...]; and to further the efficiency of the profession and the well being of those who practiced it.”

2.7 The Royal Commission hoped that the proposed General Press Council would function both as a guarantor of the “freedom and prestige of the Press”, by representing the interests of the newspaper industry through a single, unified voice as well as a brake on poor and unethical journalistic practices. In so doing the Royal Commission made a fundamental statement on the nature of the relationship between the state of the press and the health of the nation as a whole, suggesting a correlation between the ownership structures of the newspaper industry and the incidence of inaccurate reporting and poor journalism. Significantly too, the Royal Commission’s report recognised that, as a consequence of technological and commercial changes, the ability of newspapers to disseminate “to the public a mass of information on subjects as complicated as they are important” had increased, but there had been no commensurate increase in journalism fitting or appropriate to such purpose.10

2.8 The Report of the Royal Commission made a number of recommendations, some of which added important detail to the central proposal of the formation of this ‘General Council’. For instance, the Commission recommended that the Press Council be made up of 25 members, a proportion of whom (some 20%) would be appointed from outside the industry and would ensure that lay interests were adequately represented. The Commission’s Report also set out what Sir William David Ross and his fellow commissioners regarded as the necessary and non-negotiable elements of an effective regulatory regime for the British press. These were: a code of conduct; powers to adjudicate and rule on complaints, including those received from third parties as much as from individuals directly affected, and powers to impose sanctions where appropriate. It was intended by the Commission that the Press Council should have sufficient powers to maintain press standards and where appropriate to impose sanctions for poor conduct:11

“It should have the right to consider any complaints which it may receive about the conduct of the Press or of any persons towards the Press, to deal with these complaints in whatever manner may seem to it practicable and appropriate, and to include in an annual report a statement of any action taken.”

2.9 It is clear from the recommendations made by the Royal Commission that it intended that the Press Council should have a broad remit, encompassing a number of potentially problematic and conflicting functions; this would include being a champion of press freedom as well as a defender of the rights of members of the public who might have been mistreated by the press. In addition the Royal Commission proposed that the General Council of the Press should have appropriate powers to monitor and rule on the terms and conditions of the employment of journalists and other newspaper workers, whilst also promoting the interests of consumers and conducting research into the long-term social and economic impacts of the print industry. The Commission was clear; its proposals were not intended “to safeguard its own liberty” but to “save the press from itself.”12

2.10 Although Parliament unconditionally accepted the recommendations of the Commission, the industry response to them was slow and much wrangling and negotiation followed. Indeed, it has been convincingly argued by some commentators that such progress was only made as a consequence of the real threat of statutory regulation.13

2.11 That came about in this way. The initial industry response of the press to the Report of the Royal Commission found little favour with the then Government. That response was seen as concentrating too much power in the hands of already powerful newspaper proprietors, and paying too little heed to many of the recommendations contained in the report. The NUJ also declared the newspaper industry’s proposals to be unacceptable to the Union and its members.14

2.12 To deal with what appeared to be a palpable lack of progress and refusal on the part of the newspaper industry to grapple with the fundamental criticisms and concerns at the heart of the Royal Commission’s report, in November 1952 the Labour backbench MP, CJ Simmons, with the backing of a number of members of the Shadow Cabinet, introduced a Private Member’s Bill. This Bill was intended to establish a Press Council in statute. The threat of statutory regulation quickly persuaded newspaper publishers to come to an agreement that was deemed satisfactory to the Conservative Government, which then took action to prevent a second reading of the Bill.15

2.13 When it was eventually established in 1953, the General Council of the Press, as had been fashioned by the industry and endorsed by the Conservative Government, was substantially different from the proposals that had been recommended by the Royal Commission. In many respects, the changes which had been made to the structures and functions of the nascent Press Council were to the benefit of the industry and not to those who complained of having been the victims of press mistreatment. Significantly, proposals for lay representation on the Press Council, including the appointment of Chairman from outside the industry, had been dropped. Further, the recommendation that the Press Council be able to investigate and make findings on complaints brought by members of the public was changed so that, in most circumstances, only complaints by persons affected by stories would be accepted; third party complaints would be entertained on a discretionary basis and exceptionally. Other recommendations relating to the promotion of standards and the employment conditions of journalists and other newspaper employees were also omitted from the final proposals brought forward by the industry.16

2.14 The Media Standards Trust has noted in its submission to the Inquiry the ‘prescience’ of the final contribution made by CJ Simmons to the Parliamentary debates on the establishment the Press Council, in which he said:17

“[To] give the voluntary Press Council a chance to prove its worth, efficiency and competence to do the job to which it has set its hand, I give warning here and now that if it fails some of us will again have to come forward with a measure similar to this Bill.”

3. The royal Commission of 1962 and the Younger Committee into privacy

3.1 The General Council of the Press was neither the body nor the panacea that the Royal Commission had intended. From the outset it was the subject of criticism, particularly from those who thought themselves the victims of press mistreatment. It was seen as self-serving and concerned more with defending the interests of journalists and newspaper editors than in addressing the many issues identified by the first Royal Commission on the press. In 1961 a second Royal Commission was established

“...to examine the economic and financial factors affecting the production and sale of newspapers, magazines and other periodicals in the United Kingdom.”

3.2 Lord Shawcross, a former Labour Attorney General and then President of the Board of Trade, later becoming a cross-bench peer, was appointed Chairman of the second Royal Commission. Lord Shawcross was a passionate defender of press freedoms and had spoken publicly on the subject on a number of occasions. He brought a formidable intellect to the task as well as a reputation for gravitas and forensic analysis achieved as Chief UK Counsel for the Prosecution in the post-war Nuremberg trials.

3.3 The establishment of a second Royal Commission on the press was prompted in part by the closure of a number of national and provincial newspapers which had led to a further, and to some, worrying concentration in the ownership of newspaper titles. Its primary purpose was to look at the costs of production, printing and distribution as well as at the nascent impact of television on readership and advertising revenues, and to consider whether these factors had affected the diversity of ownership and control. The terms of reference to the Commission explained it thus:18

“...to examine the economic and financial factors affecting the production and sale of newspapers, magazines and other periodicals in the United Kingdom.”

3.4 The Commission was not primarily concerned with the performance of the press or with questions of ethical behaviour, and indeed its terms of reference made no express reference to either of these matters. But its very establishment reflected political and public concern at the steady build up of complaint, as well as public disapproval, at press behaviour. Some contemporary commentators sought to explain this further decline in standards through the prism of increased competition for circulation. Others called into question the effectiveness of the overall system of self-regulation through the General Council of the Press, decrying its inability to put an end to press intrusion into the private lives of individuals.19 It is a matter of some significance that Lord Shawcross commented on the failure to heed the lessons of the first Royal Commission:20

“[h]ad they been carried out much of our own inquiry might have been unnecessary”.

3.5 The Shawcross Commission published its findings in September 1962. The Commission levelled substantial criticism at the General Council of the Press for, in particular, its failure to implement many of the recommendations made by the first Royal Commission on the press. These specifically included those recommendations relating to the monitoring and enforcement of standards, the involvement of lay representatives on the Council and its failure to heed recommendations relating to the monitoring of levels of newspaper ownership.

3.6 The Shawcross Commission clearly identified those issues that it deemed had led to a decline in press standards, and it called for an improvement in the performance of the General Council of the Press. However, the solutions it proposed were little different from those articulated by the first Royal Commission in 1949. It recognised the desirability of a voluntary system of self-regulation for the press, but made clear that any such system of regulation would need to be built around an effective and credible body rather than the General Council of the Press as it was then constituted. It recommended that the industry should be given two years to bring forward, develop and implement appropriate plans but, should these not be forthcoming, recommended that the Government should introduce the legislation necessary to establish a Press Council in statute, with powers equivalent to those recommended originally by the first Royal Commission in 1949. Lord Shawcross said at the time:21

“If... the Press is not willing to invest the Council with the necessary authority and to contribute the necessary finance the case for a statutory body with definite powers and the right to levy the industry is a clear one”.

3.7 Anxious at the potential threat of statutory legislation, the industry response to the recommendations of the second Royal Commission was rather swifter than had been the case following the first Royal Commission. The General Council of the Press was reformed as the Press Council. For the first time it included lay representation on its board. The newly formed Press Council also made amendments to its constitution to reflect the wider recommendations made by the Commission. Clauses that were no longer regarded as relevant to its role and remit were removed and, in particular, a new clause was introduced in relation to the consideration of complaints about the press.22 This empowered the Press Council to deal with them “in whatever manner might seem practical and appropriate”.23 The reformed Press Council also took a more proactive approach to the consideration of some of the most significant challenges facing the press and published guidance on contempt of court, privacy and defamation.

3.8 These reforms, however, were not universally well-received. Questions were asked almost immediately about the ability of the Press Council to regulate the actions and conduct of newspapers. These had altered little over time, and the press continued to push at the boundaries of what was considered acceptable journalism. Coverage of the Profumo scandal and, in particular, the Sun’s exclusive interview with Christine Keeler, as well as the vilification of the child-killer Mary Bell, by turns titivated, entranced and horrified the public. Further, allegations of payments for stories relating to the Profumo affair, as well as to witnesses in the case of the Moors Murders, undermined confidence in the efficacy of the Press Council as the regulatory body for the press.24 Perhaps unsurprisingly, by the end of the decade there were calls for a further Royal Commission on the press as well as an inquiry into the workings of the Press Council which had struggled to be seen as anything more than “a champion of the press [rather] than as a watchdog for the public”.25

3.9 The introduction of a Private Members Bill on privacy forced the hand of the Wilson Government, and in 1970 a new Committee looking, once again, at the behaviour of the press was constituted.

The Younger Committee

3.10 The Committee on Privacy, chaired by Sir Kenneth Younger, was established to examine a number of issues relating to the personal privacy, including the responses of the Press Council to alleged breaches of privacy in the press. Sir Kenneth Younger was a barrister by training and former Labour Party politician who had served as a junior Home Office Minister in the Government of Clement Atlee. After leaving Parliament in 1957, Sir Kenneth had campaigned for progressive political reform with regard to a number of social issues including the legalisation of homosexuality and reform of prison conditions.

3.11 Published in July 1972, the report of the Younger Committee on privacy was highly critical of the Press Council and its seeming inability to command the confidence of the British public. The Committee suggested a causal link between the level of lay representation on the Press Council and the overall credibility of that organisation in the public mind. The Commission duly recommended that the Press Council increase the representation of lay members; it also recommended that steps be taken to ensure the independence of lay appointments because, in its view, the process of appointment was both opaque and too readily open to influence from the industry.26 Of the recommendations made by the Younger Committee, perhaps the most significant related to the publication of Press Council adjudications by newspapers. The Younger Committee suggested that where an adverse adjudication had been issued by the Council, it should be given similar prominence to that given to the original article.27 The Younger Committee also recommended that the Council make efforts to codify its adjudications on privacy and build up a body of case law understood by the industry.28

3.12 It is perhaps indicative of the prevailing mood that the Committee did not unanimously agree the recommendations made in the final report. However, a minority of the commissioners who worked together with Sir Kenneth, did not believe the recommendations to be sufficiently far-reaching, and a minority report was published which recommended among other things a general law of privacy to provide individuals with proper protection from unjustified press intrusion.29

3.13 The reforms of the Press Council, which were finally implemented in July 1973, did not encompass the most significant of the recommendations made in the Younger Report. In particular, recommendations on the prominence of adjudications and the codification of rulings had been dropped. Lay membership on the Press Council was increased by four to ten, which was exactly half the number of industry representatives. Begrudgingly accepting the Committee’s recommendation, the Chairman of the Press Council, Lord Pearce, noted that the Younger Report had provided ‘no evidence’ to support the conclusions it made linking public confidence in the Press Council to the proportion of lay representatives but, nonetheless, further minor changes were made to increase the number of lay representatives serving on the Complaints Committee.30

3.14 Following the publication of the Younger Report, public criticism of the Press Council, characterised by Lord Pearce as ‘assaults on the principle of self-regulation,’ became more commonplace.31 Certainly, the tensions between the regulator, the regulated and the public were made more acute by the political and social tensions between the Government, the trade unions and the industry more broadly, and did little to address the failings, both perceived and actual, of the Press Council. Indeed, the performance of the Press Council was regarded by the Government of the day as so inadequate that, within a year of publication of Sir Kenneth Younger’s report, not only was a third Royal Commission on the Press established, but it was given an express remit to examine in detail “the responsibilities, constitution and functioning of the Press Council.”32

4. The royal Commission of 1974

4.1 The Third Royal Commission on the Press was established on 7 March 1974 under the Chairmanship of Professor Oliver (later Lord) MacGregor, then a leading academic in the field of socio-legal studies and medical sociology and, immediately before his appointment, a fellow of Wolfson College, Oxford. Much later, he was appointed first Chairman of the Press Complaints Commission.

4.2 The MacGregor Commission was constituted not only in the context of ongoing discussions on the recommendations of the Younger Report on privacy but also against a continuing backdrop of concern at the behaviour of journalists and the press more widely. Public and political frustration was also growing at the apparent inability of the Press Council to curb the worst excess of such behaviour or to provide sufficient redress to those who had been wronged by the press. The MacGregor Commission was granted a broad remit and was invited to:33

“...inquire into the factors affecting the maintenance of the independence, diversity and editorial standards of newspapers and periodicals and the public freedom of choice of newspapers and periodicals, nationally, regionally and locally.”

4.3 When it reported in 1977, the McGregor Commission sought to explain the real difficulties it had faced in reaching its recommendations. The Commission expressed concern that there was no real public or political consensus on the role of press in British society. It recognised that the press should not be subject to state control but it refused to advocate a press that was subject only to the unregulated forces of the market and the pursuit of profit.34 Although undecided on the most suitable form of regulation for the press, the Commission was unequivocal in its criticism of the Press Council both as a regulator of press standards and as able to provide appropriate means of redress. It recommended wholesale changes to both the structure and functions of the Press Council.

4.4 The Commission’s proposals for reform of the Press Council included a reiteration of the dormant recommendations of the first and second Royal Commissions as to the prominence and location of adjudications. Lord MacGregor’s Commission, in line with the previous Royal Commissions and the Younger Commission, also proposed that the question of confidence in the Press Council should be addressed through an increase in the number of lay representatives and the appointment of a lay Chairman. It also recommended that the Press Council should seek to curb the worst excesses of the press through the development and implementation of a written code of conduct. The Commission’s report noted:35

“...it is unhappily certain that the Council has so far failed to persuade the knowledgeable public that it deals satisfactorily with complaints against newspapers”.

4.5 The MacGregor Commission also made recommendations intended to effect a fundamental shift in the treatment and handling by the Press Council of complaints made by members of the public. It proposed that the Press Council should not only act as mediator and arbitrator of complaints but should also actively seek, where appropriate, to secure the swift publication of adjudications, where necessary on the front page. The MacGregor Commission also entered new terrain, as its recommendations included:36

“The creation of a Conciliator, drawn from the staff of the Council, to propose remedies between complainants and newspapers:

4.6 In line with the approach of the Second Royal Commission, the final report of the MacGregor Commission suggested that if the response of the industry and Press Council was insufficient to address ongoing concerns as to press conduct and restore confidence in the Press Council, then a statutory solution might need to be sought.37 That said, Professor MacGregor remained hopeful that such measures would not be necessary. The conclusion to its report set out its aspiration and belief that:38

“...these recommendations will be accepted and acted on by the Press Council, and that it will fulfil the hopes that were held for it in 1949.”

4.7 In a yet further parallel to the Younger Review, the MacGregor Commission published a minority report, its adherents taking the line that more was needed to modify the culture, practices and ethics of the press.39

4.8 Much as the publication of the MacGregor Report in 1977 had mirrored the publication of the Shawcross report in 1962, there were many similarities between the reactions of the Press Council and the industry to the two sets of recommendations. The Press Council rejected the most significant recommendations of the MacGregor Commission, arguing that they amounted to an unnecessary restraint on the press and muzzled freedom of expression, despite widespread and very public calls for meaningful reform. In all, five out of twelve of the MacGregor Commission’s recommendations for reform of the Press Council were explicitly rejected, including the recommendation for a written Code of Conduct, and a number of others were de facto ignored.40 Furthermore, where the call for reform was heeded and changes implemented, that implementation was partial and incomplete. As the Media Standards Trust has fairly pointed out, this repeated the:41

“...previous outcomes of 1953, 1963 and 1973 (when the recommendations of the first two Royal Commissions and the Younger Report were implemented).”

4.9 Of the recommendations made by the MacGregor Commission in relation to the Press Council, only those relating to lay representation, the appointment of a Conciliator and to the seeking of nominations ‘from any source’ were adopted in full.

4.10 Yet although the reaction of the industry was predictably obstructive, the reaction of the public was different. Whereas the newspaper industry had criticised the recommendations made by Professor MacGregor because of the restrictions they believed the proposals would, if implemented, have placed not only on freedom of speech but also on the ability of journalists to hold the rich and powerful to account, public criticism of the report focused on the perceived weakness of its proposals, particularly in relation to the Press Council. In a curious twist of fate, contemporary commentators also suggested that there were unintended consequences to the publication of the MacGregor report, namely that the extent of the criticism of the Council in the report weakened it still further and “did little to improve the long-term credibility of that body.”42

5. The first report of Sir David Calcutt QC

5.1 It is clear that neither the MacGregor Commission nor the limited and begrudging response of the industry to its recommendations did much to stem the increasingly growing sense that self-regulation of the press through the offices of the Press Council was not an effective means of limiting harmful press behaviour. Rather, they fostered a polarisation of the debate on the role of the press in British society and the most effective means of regulating what many believed to be the most harmful aspects of press behaviour. Indeed, the period between the publication of the report of the third Royal Commission and the formation of the Press Complaints Committee in 1990 (following the publication of the first of the reviews of the press by Sir David Calcutt) witnessed some of the most egregious examples of press misconduct. These included allegations of cheque book journalism in relation to the Yorkshire Ripper, Peter Sutcliffe, defamatory allegations made in The Sun about the singer, Elton John (which led to the award of record damages for libel in 1987), the coverage of the television presenter Russell Harty’s illness and subsequent death in 1988, and the coverage of the alleged behaviour of Liverpool football fans during the Hillsborough disaster in 1989. Some of these examples of breaches of privacy and defamatory reporting became stories in their own right. The growing list of high-profile incidents involving harmful press behaviour tested public and Parliamentary support for the Press Council and led to a ‘crescendo’ of criticism.43

5.2 The corollary to this was the continued erosion of public support for voluntary self-regulation. It should not be doubted that contemporaneous arguments about journalistic freedoms and the most effective means of regulating the British press were amplified through the wider travails and industrial disputes that afflicted the industry during this period. These paralleled a growing ideological divide in British politics. Back in 1974, the Labour Party had published a report entitled The People and the Media which set out its thinking on the British media and communications markets. It proposed that a joint regulatory code should be developed for both broadcasting and the press, and that public confidence in the regulator should be fostered through greater transparency, regular public review of that body and a legally enforceable right of reply.44 The report also considered the state of the press market and, perhaps unsurprisingly for a document produced by a political party which was not always favourably characterised in press reporting, bemoaned a lack of accountability and bias in the press. More significantly, The People and the Media was also strongly critical of the existing system of self-regulation through the Press Council; whilst the Governments of Harold Wilson and James Callaghan did little to change the system of self-regulation for the press, the report marked an fundamental shift in political support for the Press Council, which had previously benefited from the tacit support of both the Labour and the Conservative Parties.

5.3 The Labour Party was certainly not alone in its criticism of the Press Council. The Campaign for Press Freedom (which would later be re-constituted as the Campaign for Press and Broadcasting Freedom (CPF)) also advocated a complete overhaul of regulation of the press. Perhaps unsurprisingly for an organisation that had its roots in the wider Labour movement, the CPF pointed to what it regarded as unnecessary and destructive hostility directed at the trade unions by newspaper proprietors. The CPF also sought to lay the blame for the lack of real and meaningful reform at the door of the Press Council and the system of self-regulation itself.

5.4 So concerned was the CPF at the perceived injustices of the existing system that it established its own Inquiry into the Press Council and matters relating to it. When it was finally published in 1983, the CPF report (known as the Robertson Report on the Press Council after its Chairman Geoffrey Robertson). The Robertson Report was unsurprisingly critical of the performance of the Press Council, but recommended nevertheless that the organisation be granted one final opportunity to reform itself and demonstrate its efficacy as a regulator.

5.5 The conclusions of the report were unambiguous about what such reforms should entail. It recommended substantive changes to the Press Council and indeed to the existing law. Recommendations for reform of the Press Council included the further and oft repeated call for the development of a published code of conduct, auditing powers to ensure the maintenance of high standards, as well as powers, backed by contract, to direct prominent publication of corrections.45 The Robertson Report also recommended that the Press Council be given responsibility for the training and professional development of journalists. However, this report also went much further in its recommendations than just proposals for the reform of the Press Council. It also recommended substantive legislative change. Proposals put forward by the CPF included legislation to establish a statutory press ombudsman, to provide a defence in law for investigative journalism, a Freedom of Information Act and changes to the laws on libel and contempt.46

5.6 Reference has already been made to examples of press misconduct in the 1980s, but it would be incorrect to suggest that the Press Council was always silent in these circumstances. Indeed, under the leadership of its final Chairman Sir Louis Blom-Cooper QC, the Press Council made significant efforts better to represent ordinary people and the victims of press mistreatment.47 However, there is little evidence to suggest that such rulings were respected or observed by the industry. Indeed, in material submitted by Sir Louis to the Inquiry, he has made clear his belief that the Press Council ultimately failed because its rulings were routinely, though not always, traduced and undermined in the pages of newspapers, thereby only serving to undermine public confidence in that body.48

5.7 The perceived inability of the Press Council to take credible and effective action in these cases of press mistreatment further damaged its reputation. Increasingly, it was regarded as ineffective both as a regulator of press conduct and as a means of redress for those who had suffered harm. Consequent opprobrium at the Press Council was not restricted to those who were the victims of press misconduct, but also extended to policy makers and to some of those involved in the industry. Already in 1980, the NUJ had withdrawn its membership from the Press Council on the grounds that it was not only incapable of internal reform but also was not able effectively to improve the behaviour of the press.

5.8 Parliamentary concern at the behaviour of some parts of the press was such that in 1989 two Private Members’ Bills were put before Parliament. These were intended to address the intrusive practices conducted by some journalists and the lack of redress available to those who had been the victims of them. The first of the two Bills was laid before the House of Commons by a Conservative MP, John Browne. His Bill proposed the introduction of a privacy tort, envisaged as a means of helping to protect individuals from unwarranted intrusion by the press. The second such Bill was introduced by Tony Worthington, a Labour MP. This proposed the creation of a statutory Press Commission Appeal Tribunal with legally enforceable sanctions. Introducing his Bill to Parliament, Mr Worthington expressed the hope that it would improve access to redress for those who had been the victims of press mistreatment and speed up the process of dealing with complaints.

5.9 These Private Members’ Bills were not the only attempts by Parliamentarians to tackle perceived press wrong-doing and the seeming inability of the Press Council to police press excesses effectively, although they were the last before the eventual appointment of Sir David Calcutt in 1989. For example:49

5.10 The Government responded to this continual build-up of pressure for both the reform of the Press Council and the introduction of effective curbs on the worst excesses of press practice by appointing a Departmental Committee, chaired by Sir David Calcutt QC, to investigate the matter. Sir David was asked:50

“...to consider what measures (whether legislative or otherwise) are needed to give further protection to individual privacy from the activities of the press and improve recourse against the press for the individual citizen.”

5.11 Sir David published his report on Privacy and Related Matters in June 1990. It is clear from the content of the report that the members of the Committee considered its remit to go beyond a limited discussion of privacy and encompass the existing system of press regulation.51 The final report was highly critical of the Press Council and set out in clear terms the failings of that organisation. These included: its ineffectiveness as an adjudicator; the lack of confidence in its independence from the newspaper industry; its tendency to reject large numbers of complaints; the lack of clarity in its selection and categorisation of complaints; the time taken to resolve contested cases; and the lack of effective sanctions in instances of proven breach.52

5.12 However, contrary to the expectations of a number of contemporary commentators, Sir David Calcutt’s first report did not advocate the introduction of statutory controls for the press. Rather, it recommended that the Press Council should be abolished and replaced with a new self-regulatory organisation; the Press Complaints Commission (PCC). The report argued that the press be given:53

“...one final chance to prove that voluntary self-regulation can be made to work. However, we do not consider that the Press Council, even if reformed as proposed in its internal review, should be kept as part of the system. We therefore recommend that the Press Council should be disbanded and replaced by a new body, specifically charged with adjudicating on complaints of press malpractice. This body must be seen to be authoritative, independent and impartial. It must also have jurisdiction over the press as a whole, must be adequately funded and must provide a means of seeking to prevent publication of intrusive material. We consider it particularly important to emphasise the break from the past. The new body should, therefore, be called the Press Complaints Commission.”

5.13 The report recommended that this new body should deal with the numerous and substantial concerns that had been raised around the behaviour of some parts of the press. In contrast to the three Royal Commissions, the Calcutt Committee did not make a large number of recommendations for specific reforms. Rather, it set out a framework of measures that the Committee regarded as the necessary elements of an effective self-regulatory regime. The new PCC would have 18 months to demonstrate “that non-statutory self-regulation can be made to work effectively” by implementing appropriate reforms.54 In this report, Sir David recognised that such change would pose a significant challenge for the press but was adamant that if the challenge should not be met, namely ‘a less than overwhelming rate of compliance with the Commission’s adjudications ...[or]... large-scale and deliberate flouting of the code of practice by the press or a total collapse in standards,55 then “a statutory system for handling complaints should be introduced.”56

5.14 Sir David’s report made clear that the primary function of the PCC should be to provide effective redress for complaints made by members of the public against the press, including the ability to consider allegations of unfair treatment and unwarranted infringements of privacy. In addition, the Commission was to “publish, monitor and implement” a comprehensive code of practice for the guidance of both the press and the public, as well as to operate a 24 hour hotline for complainants.

5.15 Sir David also made clear that the adjudication of complaints should be a clear and fast process and that, where a newspaper was demonstrated to be in breach of the code, an apology should be given to the complainant. Sir David also recommended that the PCC should be able to advise on the form and placing of replies or corrections. It is noteworthy that Sir David’s report made no mention of sanctions and instead placed emphasis on the preparedness of the press to adhere to the adjudications of the PCC.

5.16 In addition, Sir David’s report made a small number of specific recommendations about the structure and function of the PCC, intended to address concerns expressed by the three Royal Commissions as to the independence of the organisation. The report recommended that the PCC should have an independent Chairman supported by a Commission made up of no more the twelve Commissioners. These would be appointed by a separate independent appointments commission which would select and appoint on the basis of merit alone.

5.17 As had been the case after the second Royal Commission(but not other reviews less favourable to the press), the response of the industry was swift. The Press Council was duly disbanded, and in the spring of 1990 the five publishing associations in the UK (the Newspaper Publishers Association, the Newspaper Society, the Periodical Publishers Association, Scottish Newspapers Publishers Association and the Scottish Daily Newspaper Society) worked together to establish the Press Standards Board of Finance (PressBoF) for the specific purpose of funding the PCC. The PCC was itself incorporated on 1 January 1991 and, in a nod to the history of the self-regulation of the press as well as in recognition of his very real qualifications for the post, Lord McGregor was appointed as its first Chairman.57 However, the full Commission was appointed directly by Lord McGregor, in direct contravention of the Calcutt Report’s specific recommendation that there should be a fully independent appointments process.58

6. The second report of Sir David Calcutt QC

6.1 Although the PCC had been established speedily, standards of press behaviour remained a concern to politicians and members of the public alike because no immediate improvement in press behaviour was discerned. Indeed it has been suggested that despite the speed and promise of its establishment, the PCC quickly followed the modus operandi demonstrated by the Press Council in its responses to the Royal Commissions and Sir Kenneth Younger’s report on privacy in 1972.59 Many of the recommendations made by Sir David Calcutt were either quietly shelved or ignored by the PCC. Others were modified or implemented in a manner that benefitted the industry. For instance, the Code of Conduct was promulgated by the industry rather than the PCC itself and, as indicated above, the appointments process was not independent.

6.2 The Commission also struggled to impose its authority on the industry; it has been argued that, in failing to commit to dealing with complaints from third parties, or indeed establish any investigatory arm, the regulatory function and capacity of the newly formed Commission was ‘gravely weakened’ from the outset.60 In 1992 the Labour MP, Clive Soley, introduced a Private Member’s Bill on Freedom and Responsibility of the Press. The Bill proposed the creation of a statutory Independent Press Authority, with powers to enforce its rulings through the courts. Clive (now Lord) Soley has suggested that his Private Member’s Bill was intended to complement thinking around Sir David’s forthcoming follow-up review.61

6.3 Following the publication in The Sun of the detail of intimate conversations between the Princess of Wales and James Gilbey, and the Prince of Wales and the Duchess of Cornwall (as she now is), the Secretary of State for National Heritage, David Mellor QC MP, gave a speech in July 1992 in which he reflected widespread public anger at the actions of The Sun. He described the press as drinking in the “last chance saloon”. Mr Mellor later complained that his stance on the need for reform of the press led to him being driven from office by a series of salacious stories about his private life although he acknowledges that the timing was coincidental.62 Perhaps with greater ambiguity, he has also suggested that some of that coverage was legitimate and a matter of public interest.

6.4 In July 1992, Sir David Calcutt was asked by the Secretary of State for National Heritage to conduct a second review, the report from which was published in January 1993. This was just before Mr Mellor had left office in the circumstances explained above. David Mellor’s explanation to the Inquiry was that 18 months had elapsed since the press had been described by him as drinking in the “last chance saloon” in December 1989, and the matter needed to be re-assessed.63 There, Sir David analysed the record of self-regulation by the press since the formation of the PCC in January 1991. Sir David’s assessment was forthright. He contended that self-regulation by the PCC had failed and called for the introduction of a statutory Press Complaints Tribunal. He summarised his conclusions as follows:64

“The Press Complaints Commission is not, in my view, an effective regulator of the press. It has not been set up in a way, and is not operating a code of practice, which enables it to command not only press but also public confidence. It does not, in my view, hold the balance fairly between the press and the individual. It is not the truly independent body which it should be. As constituted it is, in essence, a body set up by the industry, financed by the industry, dominated by the industry, and operating a code of practice devised by the industry and which is over-favourable to the industry.”

6.5 Sir David’s second report made clear his view that the press was neither capable nor willing to initiate reforms that might constitute a credible alternative to statutory regulation. He therefore recommended that the proposals set out in his first report for a statutory “Press Complaints Tribunal” be enacted forthwith:65

“It has been argued that two years is too short a time in which to judge the Press Complaints Commission. But the way forward was clearly spelt out in the Privacy Committee’sReport. In particular, the Committee stressed the need for the Commission to be seen as an independent body which would command the confidence of the public. Both the Committee, and subsequently the Government, gave a clear indication that this was the last chance for the industry to put its own house in order. It has to be assumed that the industry, in setting up the present Press Complaints Commission, has gone as far as it was prepared to go. But it has not gone far enough.”

6.6 If the conclusions reached in Sir David Calcutt’s second report were damning of the PCC, the recommendations for change were equally alarming for the supporters of self-regulation. The final report contained a detailed set of proposals for the wide-ranging powers that should be granted to that body. These included powers to establish and maintain a code of practice, prevent the publication of material in breach of the code, handle complaints in relation to alleged breaches of the code (including from third parties), investigate and adjudicate on breaches without a complaint, require the publication of adjudications, apologies and corrections, and, where appropriate, to hold full hearings.66

6.7 The PCC and the industry rejected the analysis of Sir David. They argued that he had failed to pay sufficient attention to the relevant facts. The PCC said that the criticism of it was excessive.67 Indeed, Sir David’s proposals were seen as a step too far by even the most adamantine critics of the press.68 However, the PCC did accept that some reform was required and under the leadership of its second Chairman, Lord Wakeham, changes were made to aspects of policy and procedure, largely to improve and expedite the complaints handling procedures.69

6.8 Specifically, amendments were made to the Editors’ Code of Practice. These included requirements to restrict the use of eavesdropping and phone bugging techniques.70 Other changes included new guidance on how journalists should identify themselves when seeking stories. In addition, the board of the PCC was reconstituted to include a majority of lay members (nine, including the Chair, alongside seven serving editors). Similar changes were also made to the independent Appointments Committee.

6.9 In further changes, the industry agreed that the PCC should be granted powers to ratify, if so advised, the changes to the Editors’ Code of Practice recommended by the Editors’ Code of Practice Committee. Funding to the Commission was also increased substantially. This enabled the development and introduction of a hotline for members of the public specifically to deal with incidents of harassment by members of the press, as had been recommended in Sir David’s first report.

6.10 The weakness of the press response to the second Calcutt report, as part of an overall narrative, was demonstrated by an example provided by Lord Brooke, the Secretary of State for National Heritage between July 1992 and September 1994. He recalled that in 1993 the Sunday Mirror published photographs of the Princess of Wales exercising in a private gym.71 Lord McGregor, then Chairman of the PCC, issued a public rebuke of the Sunday Mirror; but instead of showing contrition the paper’s response was to leave the system of self-regulation through the PCC.72 Lord Brooke suggested that this incident was instructive at many levels, demonstrating not only the weaknesses existing within the system of regulation, but also the refusal of the press to begin to countenance change until compelled to do so as a consequence of public indignation at its behaviour.73 Lord Brooke described the matter thus:74

“In the same way, another instance which I would quote from my own time, the episode of the Mirror in the first week of November 1993, when the photographs were taken of Princess Diana working out in a gymnasium, had a very powerful effect on the behaviour of the press immediately, because they had been resisting anything that in any way related to – either to Calcutt or to ourselves and indeed others, and then suddenly changed their minds when they realised that an episode as absurd as the Mirror episode, where the chairman of the Press Complaints Commission rebuked the Mirror – the Sunday Mirror, in fact – rebuked the Sunday Mirror for their behaviour, first led the Sunday Mirror to walk out of the Press Complaints Commission, and then to come back, and it was clear that some of the things that were being said to them about the degree of control that they had were actually being proved by reality.”

6.11 The Government did not immediately respond to Sir David’s second report. Rather, it waited until 1995, when the Secretary of State for National Heritage, Virginia Bottomley MP, rejected his recommendation for statutory regulation and instead supported the package of reforms that had been proposed by Lord Wakeham. The Inquiry has heard from witnesses who have sought to explain the nature of the Government’s response. Sir John Major has told the Inquiry that, although a matter of concern to his Government, the conduct of the press could not be regarded as a priority, nor, he noted, was there any agreement within the Government on the most desirable way forward.75 He recounted that his Government had to contend with other more pressing and immediate demands, including the UK’s exit from the European Exchange Rate Mechanism on Wednesday 16 September 1992.76 Sir John also suggested that the strength of Parliamentary opinion in relation to freedom of the press, particularly in the context of the Government’s diminishing Parliamentary majority, ruled out any more decisive action in this area.77

6.12 Sir John’s recollection of events has found a complementary echo in the evidence of Lord Brooke. He told the Inquiry that there was little appetite in Cabinet for the statutory solution proposed by Sir David in his second report.78 Lord Brooke also explained that a number of legislative proposals, through which press intrusion might be addressed,79 had been put forward by different Government departments. These included both a privacy tort and proposals to make some forms of intrusion a criminal offence. Lord Brooke noted that although there was some agreement in Cabinet on bringing forward legislation to introduce criminal offences, there was less accord in relation to the introduction of a tort of privacy.80

6.13 Stephen Dorrell, the Secretary of State for National Heritage from July 1994 to July 1995, was responsible for the formulation but not the publication of the response to the second Calcutt report. He has helped complete this picture. He said that such were the disagreements in Cabinet around both the likelihood of the Government enacting legislation and the desirability of regulating the press, that the Government had “argued itself to a standstill”.81 He also noted that the reforms to the PCC proposed and then implemented by Lord Wakeham increasingly appeared to meet the needs set out by Sir David Calcutt without the requirement for time- consuming and controversial legislation.82

6.14 Nonetheless, many have suggested that Lord Wakeham’s appointment and tenure was very much in the interest of the press. Lord Smith summarised industry thinking behind his appointment in this way:83

“I think the newspaper industry did not want statutory control and that they accepted they needed someone to be the chairman with a bit of clout, who could stop statutory control by getting the standards up to an acceptable level, and this was my view of what I thought they probably wanted.”
Sir John Major explained why Lord Wakeham’s appointment might well have been valued by the industry itself:84
“I mean, those who were at all queasy about it would then say, “Look, here is one of our own, a very respected former Cabinet Minister who is actually chairing the PCC. Therefore, why don’t we wait and see how well he gets on? Why rush ahead with legislation?”
So his appointment did have a material effect upon views in the Parliamentary party.”

6.15 However, Lord Wakeham was not appointed simply for his political skills. In perhaps the most important respect, he shared the values which were most cherished to the industry which the PCC was regulating. Lord Wakeham explained that he was a strong supporter of both press freedom and self-regulation:85

“I don’t think you could be a chairman of a body that was running a system of self- regulation unless you believed in self-regulation. I think that would be a bit difficult. And I can’t imagine you being a very good chairman of a Press Council if you didn’t believe in press freedom. I would have thought they were pretty self-evidently things that were required for the job.”

6.16 Whilst it is clear that the PCC did introduce reform during the chairmanship of Lord Wakeham, including the appointment of a Privacy Commissioner tasked with the oversight of each and every complaint to do with privacy, these changes did not amount to the creation of the organisation envisaged by Sir David Calcutt in his first report, but rather a PCC that met the minimum requirements of a Government increasingly disinclined to effect major reforms of the system of press regulation and fearful of the political ramifications of any such change.

6.17 The PCC won support in some quarters, including in Government, for the breadth of its proposed reforms and their speed of implementation. But the frank evidence of Sir John Major is pertinent on this issue:86

“In retrospect, yes. I mean, there were some things done. It has to be said on behalf of the PCC that it did make some changes. They were relatively trivial changes, but they were changes. And they also, if I remember correctly, appointed a privacy commissioner from among their numbers, a Professor Pinker, at the time. So there were things that they had done, and the hope that Stephen Dorrell is expressing there is that John Wakeham would be able to persuade the media, the press, to go a good deal further than they already had done. It was, as you say, aspirational.”

7. The death of Diana, princess of Wales

7.1 The death of Diana, Princess of Wales in 1997 was a wake-up call for the press. Although it did not generate a specific inquiry into press ethics, it did reignite a public demand for improvements in press behaviour.

7.2 Considered as a whole, the reforms introduced in response to the public outcry were the most comprehensive ever introduced by the PCC. It should not be doubted that the reforms, which concerned amendments to clauses 4 and 6 of the Editors’ Code of Practice, did have an impact on the behaviour and actions of journalists, press photographers and paparazzi.

7.3 Nonetheless, it is apparent from the evidence that these changes were, as so many before, hard won from the industry and not freely given. Lord Smith provided a detailed description of the protracted negotiations between his Department and the industry through the offices of the PCC, in which despite the tragic background, the quite extraordinary levels of public concern, and the willingness of the PCC to act in the first instance as regulator and then mediator, the final outcome was “relatively modest”.87

7.4 Lord Smith told the Inquiry that it was Government policy to seek to strengthen the system of self regulation and, in particular, to bring about changes in relation to sanctions, the definition of the public interest, and the issue of PCC pro-activity.88 Lord Smith made clear that he thought that tackling these three issues would effect far-reaching and lasting change in the attitudes of the industry such that the press “should not slip back into old ways when the events of the past week have receded from recent memory”.89

7.5 However, it is quite clear from the evidence both of Lord Smith and Lord Wakeham that the industry was unwilling to make concession in these respects. Rather the changes that were finally adopted were confined to those very few areas outlined above most closely associated with the direct circumstances surrounding the death of Princess Diana. Lord Smith testified that the industry demonstrated a disinclination to agree to any changes and did so only under duress after considerable public and political pressure was brought to bear. In his evidence Lord Smith recalled a meeting with Lord Wakeham in which the latter said:90

“If the government can keep up some external pressure on me, pushing me all the time to go a bit further, then that will be very helpful, he said, in enabling me to make better progress with the editors and proprietors.”

7.6 Even in the evidence of Lord Wakeham it is clear that his ability to broker a solution was severely circumscribed by the unwillingness of editors and proprietors to concede ground:91

“bear in mind the changes in the code were not a matter for me; they were a matter for the editors under the arrangements, and I therefore had to move carefully to make sure the editors went along with what I wanted.”

7.7 Lord Smith recognised that one of the lessons from history was that the window of opportunity for reform was short. He said that over a period of months the attitude of the PCC shifted from operating as a regulator to championing the interests of the press. This was a metamorphosis which it may be argued was as inevitable and it was entirely understandable, as other ‘real world’ concerns impacted, in particular in relation to the possible ramifications for the press of the incorporation of the European Convention on Human Rights into UK domestic law.92

7.8 Further, the reforms to the Editors’ Code of Practice that were introduced with effect from 1 January 1998 were neither welcomed by the press nor much observed in the longer term. Lord Smith described these as:93

“... carried through, sometimes, I suspect, with gritted teeth amongst the editors and proprietors, because there was a public wind at the back of change. But that moment did not last for terribly long, and the equilibrium returned more or less to normal, which makes it very difficult for government to take strident steps to restrain press activity.”

7.9 Lord Smith said that, following the death of Princess Diana, Lord Wakeham, and by extension the PCC, “were stepping up to the plate and being a regulator”.94 But he, along with other witnesses to the Inquiry, stressed that the changes in press behaviour were of short duration:95

“I think it’s probably fair to say that for the two or three years following the Wakeham changes immediately after the death of Diana, the conduct of the press did improve. Certainly in terms of the specifics of the changes, their approach to the coverage of the princes, handling of children and minors, some of the intrusive taking of photographs, there was a palpable change of behaviour. But after that two to three- year period, I think it began to slip, and as we know from all the evidence that you’ve been receiving, it slipped grievously in quite a number of ways.”

7.10 Evidently, the same dynamics that played in the aftermath of the reporting of the Royal Commissions and the reports of Sir David Calcutt were also apparent in the industry’s response at this point. The industry moved quickly to make a number of high profile but nevertheless limited changes which were in any event only begrudgingly accepted. In this case, they were ably guided by the dextrous political hand of Lord Wakeham who moved swiftly and adroitly to secure political backing for an industry-led response to these events.96

7.11 In 2003 Sir Christopher Meyer was appointed Chairman of the PCC, and the evolution of that organisation under his leadership is addressed elsewhere in this Report, in particular in Part J. The organisation which he inherited was hidebound by the structural and cultural constraints which this chapter has served to highlight. It would require a herculean task to break free from them.

8. Conclusions

8.1 At this juncture, it is opportune that I seek to draw out some brief lessons from the history of press self-regulation in the UK since the foundation of the General Council for the Press in 1953, as well as the public policy response to concerns at the conduct of some sections of the press.

8.2 It must be made clear that the story is not all bad, in the sense that there have been a number of reforms in press regulation since the Second World War. That said, whilst recognising some of the good work that has been done in response to criticism, to changing attitudes and the clear recommendations of the reports, it is evident that many of the lessons of the post-war period have been ignored. This chapter of the Report attempts to provide only a cursory glance at the recent history of the British press, but it is patent that many of the concerns and practices that led to the establishment of three Royal Commissions, a Committee on privacy and the two reviews led by Sir David Calcutt, are the same as those which have led to the establishment of this Inquiry. This has been a history of strongly recurring themes.

8.3 An equally strong recurrence has been concern about the inability of ‘self-regulation’ to address the underlying problem sufficiently, an inability which has been consistently pointed out by all of those who have examined the problem in depth. The history demonstrates a distinct and enduring resistance to change from within the press. This replication of pattern, of the wheels of history moving in concentric circles, has been demonstrated through the press response to the recommendations made and repeated over the years, the regulators’97 response to those recommendations and, it must be said, the response of successive Governments to the clear advice they have been receiving.

8.4 My conclusion on the cyclical nature of press self-regulation is not a novel one. Indeed, it was shared by many of the witnesses to the Inquiry. Lord Brooke suggested that the history of press self-regulation has been one of a distinct reluctance on the part of the industry to implement meaningful change. He noted that such change that has been effected has only been implemented in the face of the very real threat of statutory intervention:98

“But in the period since 1945, I observe that quite extraneous events, like a Private Members’ Bill, actually have had the effect of moving the story on quite a lot. In the case of the 1949 Royal Commission under Sir William Ross, there was a proposal that the press should have a general body of their own, and they showed no sign at all of doing anything about that until a backbench MP called Mr Simmons in 1952/53 brought in a Private Members’ Bill, whereupon effectively almost instantly the press came around to the original recommendation in the Royal Commission.”
He continued:99
“In the same way, in 1989 – I noticed the text of Mr Dorrell’s account of how the Calcutt 1 was set up, but its actual genesis was the report stage of Mr Worthington’s bill entitled “Right of Reply”
in 1989, and the government minister responding at the dispatch box on that bill basically foreshadowed Calcutt 1 in his response. So these things happen as a result of different, frequently unrelated episodes.”

8.5 Lord Brooke perceived a causal link between the credible threat by policy makers of the introduction of statutory regulation for the press, and the introduction by the industry of limited measures to improve the existing system of self-regulation for the press, a system that has worked overall to the distinct advantage of the industry:100

“The other Royal Commissions and Lord Younger’s Commission weren’t quite so fruitful, but then there wasn’t a Private Member around to help.”

8.6 The same reasoning has been pursued more forthrightly in submissions to the Inquiry by Professor Brian Cathcart of Kingston University. He told the Inquiry that in his view the history of press reform is one of failure to introduce measures recommended in terms to improve public trust in both the press and the system of self–regulation.101 He said that the attitude of the press to change in this area has been one of foot-dragging and obfuscation, with progress only occurring under duress:102

“I think you go back to the first Royal Commission, 1946 to 1949, I think, which reports, recommends the setting-up of a Press Council and it takes three and a half years its predecessors; what it has done and how it has portrayed itself is analysed in Part J, Chapter 2, but the term is used for present purposes before the press – and an awful lot of leaning on and threats of legislation before the press will set something up. That, if you look through the history, and this is another thing that Hacked Off is doing, that sort of conduct is repeated and repeated.”

8.7 Similar observations were made by the Media Standards Trust, which submitted to the Inquiry a detailed analysis of the cycle of industry-led reform.103 Dr Martin Moore argued that in the face of considerable public concerns prompting the Royal Commission and other investigations into the behaviour of the press, the industry has been unmoved until “threatened with the Damoclean sword of some form of statutory regulation.”104 Further, Dr Moore has said the paucity of reforms implemented by the industry has led to a cycle of “subsequent commissions, often within a decade” examining to all intents and purposes the same conduct that had originally generated those public concerns.105

8.8 The Media Wise Trust agreed, recalling with some concern that recommendations made by the Ross Commission in 1949, repeated in the report of the Shawcross Commission of 1962 and again by Lord McGregor in 1974, have yet to be implemented, particularly with regard to the prominence of apologies and corrections. However, in a somewhat different vein from other commentators, the Mediawise Trust suggested that it is incorrect to describe the history as cyclical, as this tends to obscure the fact that the calls for reform became increasingly strident and more forthright with time, and the refusal of the press to implement the changes at the heart of those reports more obdurate.

8.9 The historical lessons are clear enough, but the challenge for today is whether any of them will be taken on board. Those who complain about the conduct of the press106 are entitled to ask “How many chances must the press be given before something is done about it?” The problem is to decide whether that complaint is justified and, if it is, what that “something” is.

CHAPTER 2
SELF-REGULATION OF THE PRESS

1. Introduction

1.1 This Chapter of the Report will look at the Press Complaints Commission (PCC) as the system of self-regulation that has existed for the press since 1990. Having examined the establishment of the PCC in the context of the publication of the first report into the press by Sir David Calcutt QC in June of that year, it will then look, in turn, at the powers, operation and standards of the PCC before considering both the role of Press Standards Board of Finance, which was established with the express purpose of providing sufficient funding for the PCC, and the Code Committee which is responsible for the promulgation, implementation and amendment of the Editors’ Code of Practice, the cornerstone of self-regulation through the PCC.

1.2 This Chapter will also look at the operation of the Editors’ Code of Practice, together with the services that it offers to the public; this includes the anti-harassment hotline and its role as a complaints handling body.

1.3 The purpose of this Part of the Report is to review the position of the PCC very much from the perspective of its own witnesses, rather than from that of those who are more critical of what it has done since January 1991. Some criticisms are reflected but are mentioned only. A more critical perspective requires a detailed analysis of the response of the PCC to allegations of systemic press misconduct (such as that which arose in relation to data protection following Operation Motorman and then to phone hacking following Operation Caryatid). That exercise has therefore been deferred until these incidents (covering a number of years) have been fully ventilated: the Report therefore returns to the PCC below.1

2. The establishment of the pCC

2.1 As has already been explained above,2 the PCC was set up following the first report into privacy and the press by Sir David Calcutt QC, published in 1990.

2.2 The broad scope of Sir David’s Departmental Committee had reflected a growing concern in Parliament, as well as among the public more widely, about the behaviour of some parts of the press and the perceived failure of the Press Council, then the self-regulatory body for the press, to take effective action to deal with such behaviour.

2.3 Sir David’s first report was published in June 1990. At that stage, he did not advocate the introduction of statutory controls. Rather, he recommended that the existing, and by this point largely discredited, Press Council should be abolished and replaced with a new self- regulatory organisation, the Press Complaints Commission, which should deal with the many and substantive concerns that had been raised around the behaviour of some parts of the press. The new PCC would have 18 months to demonstrate “that non-statutory self-regulation can be made to work effectively.”

2.4 As a result, in the spring of 1990, the five publishing associations in the UK (the Newspaper Publishers Association, the Newspaper Society, the Periodical Publishers’ Association, Scottish Newspaper Publishers Association and the Scottish Daily Newspaper Society) worked together to establish the Press Standards Board of Finance (PressBoF) for the specific purpose of funding the PCC. The PCC was itself incorporated on 1 January 1991.

2.5 The primary function of the newly incorporated PCC was to provide an effective means of redress for complaints made by members of the public against the press, including the ability to consider accusations of unfair treatment and unwarranted infringements of privacy. In addition, the Commission was to “publish, monitor and implement a comprehensive code of practice for the guidance of both the press and the public”, as well as to operate a 24-hour hotline for complainants. Sir David made clear that the adjudication of complaints should be a clear and fast process and that, where a newspaper was demonstrated to be in breach of the code, an apology should be given to the complainant. Sir David also recommended that the PCC should be able to advise on the form and placing of replies or corrections.

2.6 I now turn to the Editors’ Code of Practice. This set out standards of behaviour that journalists and editors should seek to uphold and also set down the rules by which the newspaperindustry should adhere. The Editors’ Code of Practice was formulated by a Code Committee, formally a sub-committee of PressBoF which was made up of serving editors of both newspapers and magazines. The Code is explored in more detail below. Further, in a determined break with the past, the newly formed PCC also took a more proactive approach to dealing with some of the more challenging issues facing the press, producing a range of guidance which is valued by editors, particularly in the regional press.

2.7 However, although the industry had moved quickly to set up the PCC, standards of press behaviour remained a concern to both politicians and members of the public who did not discern any immediate improvement in that behaviour. Reflecting that widespread concern, the then Home Office Minister, David Mellor QC MP, made clear his view in a television interview in 1989, describing the press as drinking in the “last chance saloon”. In July 1992, Sir David Calcutt was asked by Mr Mellor to prepare a second report analysing the record of self-regulation by the press since the formation of the PCC in January 1991. In that report, which was published in January 1993, Sir David argued that self-regulation by the PCC had failed and called for the introduction of a statutory Press Complaints Tribunal.

2.8 Reiterating the history set out above, the PCC and the industry more widely both rejected the analysis of Sir David. However, the PCC did accept that some reform was required and changes were made to some of its policies and procedures in the light of the first 18 months of operational experience. Further changes were made in 1995, after the Government had published its eventual response to Sir David’s second report and the PCC has continued to keep its practices under review since then.

Purpose of the PCC

2.9 The primary purpose of the PCC is set out in its Articles of Association.3 Article 53.1 of the Articles states that:4

“The primary function of the Commission shall be to consider, and adjudicate, conciliate and resolve or settle by reference to the Press Code of Practice promulgated by PressBoF for the time being in force complaints from the public of unjust or unfair treatment by newspapers, periodicals or magazines and unwarranted infringements of privacy through material published in newspapers, periodicals or magazines (in each case excluding advertising by third parties) or in connection with the obtaining of such material but shall not consider complaints of any other nature.”

2.10 This is again set out in plain English on the PCC website in the form of a mission statement.5 In that statement, it is said that the PCC is:6

“an independent body which administers the system of self-regulation for the press. It does so primarily by dealing with complaints, framed within the terms of the Editors’ Code of Practice, about the editorial content of newspapers and magazines … and the conduct of journalists.”

2.11 It is clear from this that the PCC understood itself to be a de-facto regulator and presented itself publicly as such. This difference between this perception and the reality is explored below.7

3. Current powers, operations and standards

3.1 Since its foundation in January 1990, there has been five Chairs of the PCC. These were Lord MacGregor (1991–1994); Lord Wakeham (1995–2002); Sir Christopher Meyer (2003-2009); Baroness Buscombe (2009-2011); and Lord Hunt (since 17 October 2011). Professor Robert Pinker served as Acting Chair from July to October 2011.

Membership of the PCC

3.2 Membership of the PCC is voluntary and as such there is no system of sanctions or incentives in place to induce those newspapers and magazines who do not subscribe to the PCC to do so. Currently, the majority of national newspapers do subscribe to the PCC but there are important and significant omissions to that membership. In particular, the Northern and Shell group withdrew its membership in January 2011 and, as a consequence, the Star and Express titles have not been subject to any system of self-regulation since then (although Dawn Neesom, the editor of The Star, explained in her evidence that staff at both titles continued to abide by the terms of the Editors’ Code of Practice during this period).

3.3 In addition to the majority of national newspapers, all regional titles and most magazine titles are currently members of the PCC.8 Subscription to the PCC is organised through the five print trade associations: the Newspaper Publishers Association, the Newspaper Society, the Periodical Publishers’ Association and the Scottish Daily Newspaper Society.

The structure of the PCC

3.4 The framework for the membership of the PCC and appointments to the PCC are set out in Articles 5-9 of the Articles of Association. There are a number of classes of member of the PCC, as set out at Article 6 which also established the appointments process for each class. The three classes of members of the Commission are as follows (see Article 6.1):

  1. the Chairman;9
  2. public members; and
  3. press (or editorial) members.
Article 5 provides that there shall at any time be between nine and 17 members of the PCC. It also makes clear that at all times a majority of the members shall be Public Members rather than Press Members. Commissioners also serve as Directors of the PCC. There are at present 17 members of the PCC.10

Appointment of members

3.5 The Chair of the PCC is appointed by PressBoF. It is of critical importance to note that, under the Articles of Association, PressBoF has absolute discretion to appoint the Chair on whatever terms it sees fit, and to vary or revoke that appointment. The most significant of the Articles of Association in this regard is Article 6.2, which provides that “the Chairman shall not be engaged in or connected with or interested in the business of publishing newspapers, periodicals or magazines (other than through his appointment as Chairman)”.

3.6 It is clear that candidates for the post of PCC Chair are expected to have knowledge and expertise of the working of the press and also of regulation. For example, Sir Christopher Meyer was Press Secretary to Sir John Major from 1994 to 1997; during his tenure as Prime Minister and, before his appointment, Lord Hunt had prepared a report on the future regulation of solicitors for the Law Society of England; prior to that, he had led the first review of the Financial Ombusdman Service.

3.7 In addition, the Inquiry has been told that a belief in the superiority of self-regulation above other forms of regulation is a requirement for all candidates applying for the post. The evidence submitted by Lord Hunt included a copy of the advertisement for the post of PCC Chair as it was advertised in 2011. The advertisement stated that candidates for the post of PCC Chair:11

“must be committed to the principles of self-regulation and freedom for the press.”

3.8 The Inquiry was told candidates are also tested on this particular issue during the application process. For example, Lord Grade was asked at interview whether or not he supported statutory regulation, and Sir Christopher Meyer suggested that he regarded his tenure as PCC Chair as a success as he warded off the threat of statutory regulation.

3.9 The Public Members and Press Members of the PCC are appointed differently. According to the Articles of Association, Public Members and Press Members are appointed by the Appointments Commission (Article 6.3). This Commission also has absolute discretion to appoint Public and Press Members upon whatever terms and for whatever period it sees fit. Similarly, it has the power to revoke or to vary any appointment of a Public or Press member. Article 6.3 makes clear that no Public Member shall be engaged in, or otherwise connected with or interested, in the business of publishing newspapers, periodicals or magazines (other than through his appointment as a Commissioner).

3.10 In practice, however, the Appointments Commission has been abolished and responsibility for the appointment of Public Members has been taken on by the Nominations Committee. This reform was introduced following the Governance Review in 2009 but, at this point, has not yet been formalised as an amendment to the Articles of Association.

3.11 The Nominations Committee is chaired by the PCC Chair and has two other members drawn from Public Members of the Commission. At present, Ian Nichol and Professor Ian Walden sit on the Nominations Committee along with the Chair. Vacancies for Public Members are advertised publicly. The Nominations Committee considers applications and then makes nominations for the whole of the Commission to vote upon. As part of the process of considering applications, the Nominations Committee consults with the Chair of PressBoF. The Nominations Committee is also responsible for appointing the Independent Reviewer and the Review Committee.

3.12 Press (or Editorial) Member appointments are made by the trade bodies through PressBoF.12

Functions of the PCC

3.13 The then Director of the PCC, Stephen Abell, provided detailed evidence to the Inquiry about the function and operation of the PCC. He briefly summarised the purpose of the Commission as:

  1. to investigate complaints, primarily from concerned individuals, that relate to the terms of the Editors’ Code of Practice;
  2. to deal with pre-publication concerns of individuals and advocate on their behalf with news organisations, with a view to preventing the publication of non-compliant material; and
  3. to prevent harassment by journalists.

3.14 In addition to this, the PCC also seeks pro-actively to contact individuals who might need the assistance of the Commission in their dealings with the press; provides guidance to the industry on a range of ethical issues (such as reporting on mental health issues); and works with titles to help raise standards across the industry.

Investigating complaints that relate to the terms of the Editors’ Code of Practice
The complaints process – assessment

3.15 One of the core functions of the PCC is the investigation of complaints relating to the terms of the Editors’ Code of Practice. Investigations are handled by the complaints officers in the PCC secretariat.13 Each new complaint is assessed by a complaints officer or the Head of Complaints; at this stage, any complaint which falls outside the remit of the PCC or the Code of Practice is sifted out.14 It may be the case that the PCC has to ask for further details before a decision can be taken about whether or not the complaint falls within its competence.15

When the PCC does not investigate

3.16 The PCC does not investigate cases where no breach of the Code is raised in the complaint. Examples of this might include where the complaint was about a broadcaster, or where the complaint raised questions of taste and decency.16 The PCC might also decide that, if sufficient remedial action had been taken by a newspaper, no further action was necessary.

3.17 When a complaint does not fall within the remit of the PCC, it will try to redirect the complainant to the relevant alternative regulator.17 Where the complaint does fall within the competence of the PCC, but there is no prima facie case to answer, the matter may be put before the Commission directly without investigation.18

Investigation

3.18 If a complaint does raise a prima facie breach of the PCC Code, it is assigned for investigation to a Complaints Officer. Complaints Officers at the PCC play a dual role of both investigator and conciliator.19 Where a complaint is accepted for investigation, the PCC first writes to the editor of the relevant publication. That editor is sent a copy of the complaint and is asked to respond within seven days. There then follows three way correspondence, with the PCC Complaints Officer acting as the conduit between the complainant (or his/her representative) and the publication complained about.

3.19 The PCC has a protocol for disclosure.20 This document does not place either party under any obligation to provide key documents to the other party or to the PCC itself. The protocol provides that any material submitted by a publication to the PCC in the course of a complaint will be seen by the complainant. It also provides that the PCC will‘consider on request providing to the complainant copies of our correspondence – conducted during an investigation – with editors ’. The PCC has no power to subpoena documents, having argued in the past that a power of subpoena would contribute to delay in the system.21 There is no obligation on a complainant or a publication to disclose to the other party or to the PCC documents which might undermine a party’s own case or strengthen that of the other party.

3.20 While the PCC does have the power to hold oral hearings, that power has never been exercised. According to the PCC’s response to the 2010 Independent Governance Review, oral hearings would be undesirable because they might undermine two key virtues of the PCC system, namely that the system is free and fair.22

3.21 On some occasions, the PCC has found that, after the conclusion of investigations, it has insufficient information to reconcile the positions of the parties and, as a consequence, has declined to come to any conclusion as to the merits of the complaint. There are other instances of PCC decisions in which the PCC has not upheld a complaint on the basis that there was not enough evidence for it to be sustained; on its face, however, it seems that if key documents were disclosed, the matter might have been resolved.

Action to prevent publication of material that does not comply with the PCC Code

3.22 On occasion, the PCC coordinates with publications and complainants who are at the centre of a specific news story.23 Where the police are involved, the PCC might seek to approach the subject or probable subject of stories through the police (such as contact with Cumbria police following the shootings by Derrick Bird);24 or through other representatives such as solicitors (as in the case of Christopher Jefferies).25 The PCC can send a private advisory note to editors, making it clear that an individual does not want to speak to the media.

Preventing harassment by journalists

3.23 Harassment by journalists is covered by Clause 4 of the PCC Code. Where an individual asks a publication to desist from questioning, telephoning, pursuing or photographing him, the Code makes clear that publications should not persist in their pursuit of the individual.26 The PCC has developed a system whereby it can communicate the request of a complainant to an individual newspaper or to the whole print and broadcast industry. Since 2003, the PCC has operated a 24-hour helpline,27 the number for which is advertised on the PCC website. The system, referred to by some as a desist order, has been widely praised by both members of the public and those who have benefited from the system. However, it is notable that this has been used only rarely, and only in circumstances in which individuals have been placed under sustained, intense and intrusive media speculation.

Limitations on the PCC’s role

3.24 The Articles of Association also make express a number of explicit limitations on the PCC’s competence to consider complaints. These are:

  1. the PCC can only consider complaints made by the person affected or by a person authorised by him to make a complaint (Article 53.3(a));
  2. the PCC cannot consider a complaint where the matter complained of is the subject of proceedings in a court of law or tribunal in the United Kingdom (Article 53.3(b)); and
  3. where the person affected has a remedy by way of proceedings in a court of law in the United Kingdom, the PCC may consider the complaint if in the particular circumstances of the case it appears to the Commission that it is appropriate for the Commission to consider a complaint about it. The PCC only deals with complaints relating to an article in a newspaper, magazine or periodical, or on the website of a newspaper, magazine or periodical.

Powers and sanctions

3.25 The PCC has only limited powers available to it. For instance, as already observed, the PCC has no power to subpoena documents. The PCC also has a range of sanctions available28 which, in brief, are:

  1. negotiation of an agreed remedy;
  2. publication of a critical adjudication;
  3. a letter of admonishment from the PCC Chairman to an editor;
  4. follow-up by the PCC to establish what steps have been taken to avoid a repeat of a breach and what steps have been taken against those responsible for breaches; and
  5. referral of an editor to his publisher.

3.26 Although criticised by a number of witnesses (including Dr Martin Moore and Professor Greenslade) as inadequate, Baroness Buscombe told the Inquiry that the current sanctions regime available to the PCC had been broadly effective.29 Indeed, in its response to the Culture, Media and Sport Select Committee report, the PCC said “at present, the Commission believes that its powers are effective and can point to a culture in which its sanctions have real impact”.30 The PCC has also pointed to the growing number of settled complaints as testament to the efficacy of the current sanctions regime.

3.27 Both Baroness Buscombe and Sir Christopher Meyer told the Inquiry that the possibility of an adverse adjudication on an editor of a newspaper was a real and effective sanction. Sir Christopher said that editors would go to considerable lengths to avoid an adverse adjudication and that this was to the benefit of the complainant.31 Baroness Buscombe went further, observing that editors reacted with fury to the announcement of an adverse PCC adjudication and that the effect of such an adjudication on an editor was considerable.32 In so doing, Baroness Buscombe has implied that the deterrent and punitive effect of a PCC adjudication was real. However, elsewhere in her evidence, she appeared to concede that the deterrent impact of an adverse adjudication from the PCC was not as effective as might have been suggested. She accepted that the anger she had experienced from editors when providing notice of a forthcoming adjudication was at the fact of personal criticism rather than its content and impact.33

3.28 Baroness Buscombe also explained that both the Daily Mirror and the Financial Times had threatened to leave the PCC as a consequence of an adverse adjudication. She accepted the suggestion of the Inquiry that this reflected that the balance of power within the self- regulatory system for the press may be wrong.34 However, she was emphatic that, although an issue for the system of self-regulation through the PCC, adverse and indeed disdainful reactions from editors to PCC adjudications were rare and limited to a small minority.35

3.29 In a further reflection on this point, Baroness Buscombe acknowledged that the current state of affairs impacted directly on levels of trust in the PCC and that, as a consequence, there was very real difficulty in persuading both policy makers and members of the public that an adverse adjudication was, in fact, an effective sanction.36 It is important to note in this context that the PCC has no power to enforce its adjudications or rulings if they are ignored by an editor or publisher. The lack of power in this respect has been the subject of some criticism and had already been identified as an issue to be reviewed by the PCC Reform Committee by February 2012.37

3.30 A further analysis of the punitive and deterrent impact of adjudications as a sanction is undertaken later in the Report.38

Options for appeal or review

3.31 There is no avenue within the self-regulation system through which complainants can appeal against the substance of a PCC decision. The Inquiry has been told that this was the source of some frustration to complainants, and indeed, had dissuaded some from taking complaints to the PCC in the first instance. On occasion, parties who have been informed of the substance of the outcome of adjudications in their cases have asked the PCC to reconsider its decision.39 However, when this happens, the PCC has only reviewed the process of the handling of the complaint and not the substance of the material decisions made.

Charter commissioner and independent reviewer

3.32 The position of Charter Commissioner was introduced in 2003, together with a Charter Compliance Panel, as part of the policy of ‘permanent evolution’ initiated by Sir Christopher Meyer. The function of the Charter Commissioner is defined under Articles 55 and 56 of Articles of Association as to:40

“consider complaints (other than complaints relating to the substance of an adjudication) from persons who have received a decision from the Commission and who are dissatisfied with the way in which the Commission has handled their matter.”

3.33 The first Charter Commissioner was Sir Brian Cubbon, who served until 2009. He was replaced by Sir Michael Wilcocks (who became the first Independent Reviewer). The Independent Reviewer is now Professor Robert Pinker CBE: he served as a Public Member of the PCC between 1991 and 2004 and was Acting Chair in 2002-2003 and in 2011. The role of the Charter Commissioner was characterised in the 2003 PCC Annual Report as being to ‘operate a sort of internal system of judicial review’. The Charter Commissioner is assisted in his work by the Charter Compliance Panel. Article 55.1 sets out the role of the Charter Compliance Panel as:41

“to examine the handling of complaints by the Commission pursuant to Article 53.”

3.34 In practice, the Charter Commissioner and the Charter Compliance Panel provide an avenue through which a complainant might refer his or her complaint if he or she believes that there had been some procedural defect in the way that the complaint had initially been handled. However, the Charter Commissioner had no remit to look at the substance of a complaint. This role has, since the independent governance review, been included unaltered in the position of Independent Reviewer.

Pro-active work by the PCC

3.35 The PCC produces Guidance Notes to assist the industry with particular issues where there is an apparent need.42 Such guidance has been produced on a range of subjects including: the reporting of suicide (developed together with the Samaritans); the reporting of people accused of crimes; payments to parents for material about their children and the reporting of court cases involving sex offences.

3.36 The PCC also publishes Annual Reviews. Among other information, these contain statistics about the number and types of complaints received. In addition, the PCC has in the past organised public events such as talks and Question & Answer sessions.

4. PressBof

4.1 PressBoF, is responsible for the organisation and collection of the levy which funds the PCC from the newspapers and periodicals participating in it. PressBoF is a company limited by guarantee and was incorporated shortly before the inauguration of the PCC. The membership of the Board of PressBoF is set out under Article 5 of the Articles of Association.43 Currently, three members of the PressBoF Board are drawn from the Newspaper Association; three members from the Newspaper Society; two from the Periodical Publishers’ Association and two from the Scottish Daily Newspaper Society.44 The Board members are appointed by their trade association and in turn appoint the Chair, currently Lord Black of Brentwood (who, between 1996 and 2003 was the Director of the PCC).

4.2 The structure of PressBoF is based loosely on the funding body for the Advertising Standards Authority.45 However, whilst the funding structure underpinning that organisation has been made public, that is not the case with the PCC or PressBoF. As a consequence, there is little public understanding of how the PCC budget is financed. This has been the subject of both criticism and speculation. In addition to the oganisation of funding for the PCC, PressBoF also exercised full control over the appointment of the PCC Chair, as well as playing a prominent role in the appointment of new members to the Commission until changes were introduced as part of the 2010 Internal Governance Review.46

4.3 The Inquiry has heard detailed evidence from Lord Black, who has been Chair since September 2009, which has helped to explain the role of PressBoF as to the function of the PCC. He told the Inquiry that PressBoF not only funded the PCC through the collection and disbursement of the levy, it also had a fundamental role in relation to the exercise of its functions, as all decisions relating to the role and remit of the PCC must first be ratified by PressBoF. Lord Black explained that this was to ensure that no substantive changes were made to the role of the PCC without consultation with the industry.47 In part, this was enforced through an undertaking made by Commissioners, on their appointment to the PCC, not to agree any changes to the articles of association without the express permission of PressBoF. This was one of two such undertakings made by Commissioners to the PCC, the second being to contribute £1 to the winding up costs of the PCC should this ever prove necessary.48

4.4 Lord Black also explained the generality of the PCC funding arrangements. Payments by national newspapers accounted for 54% of the levy, regional newspapers paid 39% of the levy and magazines paid the remaining 7%.49 Lord Black explained that, each year, PressBoF asked the national press through the National Newspaper Association to pay a specified amount towards the levy.50 The contribution from each member of the NPA was decided by a formula derived from the amount of news print consumed by each member and the number of publications owned by each member.51

4.5 This calculation was made through the NPA as some of the information needed to deduce the level of contributions to the levy was commercially sensitive.52 Although the membership of the NPA was in the public domain, the details of who paid for what were not public53 or, indeed, shared with PressBoF, as members of the Board or PressBoF staff may have links with the individual publishing houses.54 The monies collected through the levy were collected and passed on to PressBoF twice each year.55

Role of PressBoF in PCC appointments

4.6 PressBoF also plays an important role in the appointment of personnel to the PCC,56 including to the position of Chair. Lord Black made the point that the appointment process had not been static but had changed, becoming increasingly transparent,57 over time: he noted that the appointment of the first Chairman of the PCC, Lord Wakeham in 1991, was done effectively by a tap on the shoulder, with no outside scrutiny or independent influence.58

4.7 By comparison, Lord Black explained that the appointment of Sir Christopher Meyer in 2003 involved the use of specialist recruitment consultants. The process for the more recent appointment of Baroness Buscombe was more transparent, and was built around the public advertisement of the post in the national press.59 Further changes had since been made as a consequence of the independent review of the PCC governance processes; these were intended to make the appointment process more open and independent of the industry.60 However, it is important to note that, although lay members of the PCC were involved in the appointment of Lord Hunt in 2011, they owned no formal role in the process.

4.8 The appointment of Lord Hunt incorporated these changes for the first time. Following the resignation of Baroness Buscombe, the position of PCC Chair was advertised in the national press in August 2011. A firm of recruitment consultants, Korn, Ferry, Whitehead, Mann, were appointed to manage the process for the first time and an independent assessor was also appointed to oversee the process. The independent assessor provided an audit note of the complete application process.

4.9 Applications were made not to PressBoF but direct to the recruitment consultants. They drew up an initial long-list which was discussed with both the independent assessor and the PressBoF Board. Those discussions resulted in the production of a shorter list and prospective candidates were interviewed by the consultants in the first instance. At that point, a final shortlist of some 12 candidates was drawn up by PressBoF and formal interviews took place during September 2011. A subcommittee of five members was involved in the interview process. That committee made a final recommendation to the PressBoF Board.

4.10 The involvement of lay members was indirect. In the first instance, they were provided with an opportunity to put names forward for the post.61 Later, members were offered a meeting with Lord Hunt at which they were provided with an opportunity to give their views on the type of Chair they thought appropriate to the position.62 In his evidence to the Inquiry, Lord Black said that he spoke with all lay members of the Commission, with one exception.63 Further, the Deputy Chair of the Commission, Ian Nichol, was appointed to liaise between the independent assessor and the recruitment consultants to monitor the process.64

4.11 Lord Black rejected the notion, put to him by Robert Jay QC, that, in practice, the position of PCC Chair was a de facto political one, on the basis that the post did not deal with political matters. Lord Black also noted that Lord MacGregor of Durris, the first Chairman of the PCC, was a Liberal Democrat Peer.65 He also emphasised that the most recent recruitment process had been open to applicants from all political parties.66 Lord Black told the Inquiry that the politics of Lord Hunt, the fourth Conservative Party peer to have held the post of PCC Chair, had played no role in his appointment.67

The Editors’ Code Committee

4.12 The Code Committee is responsible for the wording of the Editors’ Code of Practice. The Code Committee has also been responsible for producing the Editors’ Codebook, which brings together the Code and the PCC case law. The Code Committee is made up of editors appointed by the relevant trade bodies of the newspaper and magazine industry.

4.13 The current Chair of the Code Committee is Paul Dacre, the editor-in-chief of Associated Newspapers. The PCC is represented through its Chair or Director at every meeting of the Code Committee and the PCC Commissioners must ratify any changes to the Code before they become valid.68

4.14 Lord Black has said that representation of serving editors on the Committee of the Editors’ Code of Practice is a basic requirement for the success of the system of self-regulation. In his view, serving editors brought necessary expertise and industry knowledge to the system and, in particular, an awareness of the dilemmas faced by staff in newsrooms.69 He suggested that majority industry representation was normal for systems of self-regulation, and was certainly the case with regard to systems of press self-regulation globally.70 However, Lord Black did concede that public or independent representation on the Code Committee or a successor body would need to be considered going forward, particularly as this would be central to any effort in rebuilding public trust and confidence.71

4.15 Having said that, Lord Black categorically rejected the notion that that the Code Committee was not suitably independent of either PressBoF or the industry more widely. He told the Inquiry that, whilst PressBoF provided funding to the PCC, and although PressBoF, through the Code Committee, determined the Code, the independence of the complaints process by the PCC was sacrosanct.72 He noted that his formal engagement with the Commission was rare, limited to one meeting each a year, the purpose of which was to update the Commission on the state of the industry. In his view, there was no capacity to exercise control over the function of the PCC.73

4.16 Importantly, Lord Black clarified that the Editors’ Code of Practice Committee was a part of PressBoF and not the PCC. It was not, therefore, subject to the same level of lay scrutiny and influence as the PCC. Indeed, the only lay representation on the Editors’ Code of Practice Committee was through the Chair and Director of the PCC, who were entitled to attend in an ex-officio capacity.74 As neither were entitled to participate in discussions or in any decision- making capacity, it is clear that the influence of lay members on the Committee was limited.75

4.17 Witnesses from the PCC pointed to the merit in allowing serving editors to sit on decision- making boards like the Code Committee, particularly in the light of the current knowledge and experience they brought of a fast moving industry. Similarly, a number of editors told the Inquiry that such input to the Code was crucial if the Code was to have sufficient credibility with the industry. The same point was also made by Lord Hunt, who stated that it was important that any rules for the press, particularly around standards, were written by professionals with an appropriate level of knowledge and experience.76

4.18 However, there was some recognition that this knowledge could be brought to bear by former editors or, indeed, other industry experts. Lord Grade accepted that the codes developed by the Communications regulator Ofcom did not suffer because input came from former rather than serving journalists.77 He also acknowledged that credibility with the industry could also be achieved through other means, such as consultation on the content of a code with serving industry editors, rather than their direct input through representation on the Code Committee.78

4.19 On one occasion at least, the Code Committee had been required to play a role as arbiter of the meaning of a given provision of the PCC Code where the PCC found that there was ambiguity.79 On 22 September 2010, Baroness Buscombe wrote to Ian Beales (Secretary to the Code Committee) asking for clarification of Clause 15 of the PCC Code (payments to witnesses).80 This was in the context of the Mail on Sunday having made payments to Baroness Scotland’s housekeeper. On that occasion, the Editors’ Code Committee took legal advice from Mr Jonathan Caplan QC, and that advice was relayed to the PCC by Ian Beales.81

The Editors’ Code of Practice

4.20 The Editors’ Code of Practice is the cornerstone of the system of self-regulation for the press,82 and it is the responsibility of the PCC to ensure that the Code is properly enforced. The PCC’s website states that all members of the press have a duty to maintain the highest professional standards.83 It makes clear that these standards are set out in the Code of Practice, and that the Code acts as a benchmark for those ethical standards. According to the PCC, the Code protects both the rights of the individual and the public’s right to know.

4.21 Although there was later comment about ways in which the Code could be improved, witnesses to the Inquiry have, in the main, spoken favourably about its content. It has been praised by witnesses for being both readily understandable and usable. Even those witnesses who have been otherwise critical of the PCC, have spoken in favourable terms about the Code: for example, Alan Rusbridger, the editor of the Guardian, has described the Code as “good”.

4.22 The PCC makes clear just how the Code should be interpreted by editors: the PCC website states that the Code should be “honoured not only to the letter but in the full spirit”.84 Issues around interpretation are elaborated further on the website, including the unambiguous statement that the Code should not be interpreted “so narrowly as to compromise its commitment to respect the rights of the individual, nor so broadly that it constitutes an unnecessary interference with freedom of expression or prevents publication in the public interest .”85

4.23 Lastly, the PCC makes clear that “it is the responsibility of editors and publishers to apply the Code to editorial material in both printed and online versions of publications”. They should take care to ensure it is observed rigorously by all editorial staff and external contributors, including non-journalists, in printed and online versions of publications.

Amendments to the Code

4.24 The Editors’ Code of Practice has developed through a process of iteration over the last two decades, responding to challenges and concern at the behaviour and actions of the press.86 The Code has now been amended on at least 30 occasions, most notably following the death of Diana, Princess of Wales, in 1997.

4.25 The most substantial of the amendments made to the Code of Practice have related to privacy and, in particular, the privacy of minors. Specifically, new wording was introduced to clause 3 in relation to privacy. This was largely drawn from the European Convention on Human Rights which, at the time the amendments to the Code of Practice were made, was about to be incorporated into UK law.87 Significantly, these amendments also altered the definition of a ‘private place’, to include both public and private places ‘where there is a reasonable expectation of privacy’. Changes were also made to Clause 1 on accuracy to cover photographic manipulation.88

4.26 Further amendments to the Code sought to address concerns around the alleged role and actions of the paparazzi in the death of Princess Diana and the manner in which some photographs were sought. To address these concerns, provisions on harassment were expanded and revised to include a ban in the use of information or pictures obtained through ‘persistent pursuit’. This new Clause 489 also made explicit the responsibility of the editor not to publish material that had been obtained in breach of this clause, regardless of whether the material had been obtained by the newspaper’s staff or by journalists or other staff employed on a freelance basis.90

4.27 A new clause 6 was also introduced, making explicit provision for the protection of the rights of children to privacy while they were at school (previously, this clause had referred only to children under the age of 16). The revised clause 6 also forbade payments to minors or the parents or guardians of children for information involving the welfare of a child (unless demonstrably in the child’s interest), and introduced a requirement for a justification for the publication of information about the private life of a child other than the fame, notoriety or position of his or her parents or guardian.91

4.28 The final changes saw the phrase ‘should not’ replaced by ‘must not’ throughout the Code, and the amendment of the section on the public interest to ensure that, in cases involving children, an editor must demonstrate an exceptional public interest to over-ride the normally paramount interests of the child.92

4.29 Despite these attempts to keep the Code updated, the Inquiry has heard some criticism about the opaqueness of the drafting process, as well as the limited opportunity afforded to members of the public to influence the process of amendment. The Media Standards Trust, for example, said:93

“It [the Code of Practice] has grown up outside of public scrutiny, framed by those responsible for putting it into practice.”

4.30 This criticism has, however, been rejected by representatives of the PCC. Lord Black indicated that there were a number of means through which the public could contribute to the amendment of the code.94 He specifically pointed to the annual review of the Code, which is undertaken by the Code Committee, during which suggestions for amendments were invited from Committee members, interested parties and the public.95

4.31 In practice, the Inquiry heard that the opinions and views offered by members of the public or from individuals outside of the newspaper industry were rarely heard. Lord Black acknowledged, in response to questions about the influence of lay voices and views on the Committee, that, as the Committee was “an Editors’ Code Committee”, the voice of the press was “bound to be predominant”.96 However, he also suggested that this potential bias was mitigated by the breadth of freely voiced opinion across the Code Committee.97

4.32 Lord Black was asked about criticisms that the Committee was slow to respond or adapt to criticism, that it had put the system of self-regulation ahead of the needs of individuals, particularly those who had been subject to abuse and mistreatment by the press, and had not looked critically or objectively at the efficacy of the system.98 He denied that any of these were sustainable criticisms, and suggested instead that the sustained level of funding by the industry for an independent system of self-regulation had brought about a number or real successes, including significant improvements to the behaviour of journalists and the press.99

4.33 In particular, Lord Black noted improvements in behaviour related to harassment and the treatment of children and hospital patients.100 He also suggested that a key, but hidden, success of the changes that stemmed from the Code of Practice was the increased tendency of editors to receive and deal with complaints themselves, particularly around accuracy, without referral to the PCC.101

4.34 Lord Black was particularly keen to make clear to the Inquiry that one of the primary functions of PressBoF, as a body that represented the industry, was forcefully to promote press freedom.102 However, he rejected the notion that this had the potential to affect the overall balance of the Editors’ Code of Practice by the Code Committee, by giving greater weight to the issue of press freedom, noting that there was only one member of PressBoF who sat on the Code Committee. He did, however, concede that the 13 members of the Code Committee (editors in their own right) would have clear and deeply held views of their own on press freedom.103

5. Benefits of self-regulation

5.1 Witnesses from the PCC were clear about the benefits of a system of self-regulation for the press. They suggested that any form of statutory regulation for the press in the UK would also undermine the efficacy of the ex-ante interventions currently undertaken by the PCC, particularly work intended to stop the publication of particularly damaging or defamatory articles.104 If this function were passed to a statutory body open to political capture then the potential for abuse of that function would have worrying and significant implications for freedom of expression.105

5.2 To illustrate his point, Lord Grade provided the example of complaints to the BBC about Jonathan Ross and Russell Brand in October 2008. The BBC Trust was able to issue an apology and a correction within ten days, whereas Ofcom took almost three months to investigate the same complaint and reach broadly similar conclusions. Lord Grade also suggested that, given the nature of complaints directed to the PCC, speed of resolution is of primary importance to the complainant.

5.3 Lord Hunt said that he firmly believed in the value of self-regulation above formal statutory regulation, which he suggested was open to political interference.106 By contrast, he suggested that independent, voluntary, self regulation of the press, for the press and in the public interest was preferable and the optimal of the available approaches. Ideally, such a system of self regulation should be universal but he did not expand on his thinking as to how bodies outside that system might be induced to join.

5.4 Like other witnesses to the Inquiry, Lord Hunt has argued that it is the press who are in best position to correct the perceived failings with the current system of self-regulation and develop a solution that is more appropriate for dealing with the issues described to the Inquiry. Lord Hunt also suggested it is only by the press working together that a system of regulation such as that outlined by Sir David Calcutt in his second report can be achieved.107

5.5 A similar line of argument was advanced by Baroness Buscombe, who told the Inquiry that the speed and flexibility of the current system are advantageous when compared with attempts to find resolution through the courts.108 She noted the harm that could be done to individuals as a consequence of drawn out court processes.109

5.6 In her evidence to the Inquiry, Baroness Buscombe suggested that the collaborative structure of the PCC was a strength.110 She suggested that had the system of self-regulation been closer to a formal regulatory process, with potentially a system of fines for breaches, the efficacy of the PCC in dealing with complaints and pre-publication issues would have been compromised. She has argued that such a change would have made the system more adversarial and would have necessitated the involvement of lawyers in decision making, leading to drawn out processes which would have resulted in a lesser service to the public.111

5.7 Lord Hunt also suggested to the Inquiry that a regulatory regime backed in statute would not be sufficiently flexible as an independent self-regulatory system. In particular he worried that a regime backed in statute would not be able to respond to new challenges as they emerged, as such a system would require changes to the law and would be beholden to the Parliamentary timetable.112 By contrast, Lord Hunt argued, an independent regulator could make changes in a more timely fashion. Although Lord Hunt conceded that it was perfectly possible to base the new system on legislation that was not proscriptive, he suggested that his experiences as a Parliamentarian led him to believe that legislation could rarely account adequately for future circumstances.113

6. Anti-harassment policy

6.1 The PCC operates an anti-harassment hotline for the general public through which an individual might communicate a desire for press attention to cease to newspapers. Such a request may result in the Commission issuing a desist order to newspapers after which press attention in the person in question should cease.

6.2 In his evidence to the Inquiry, Stephen Abell said that the PCC anti-harassment service was one of the cornerstones of the “fast moving” part of the system of self-regulation for the press; something, that by implication may not be possible or practicable under a different system.114 The service was regarded by the PCC as an important complement to Clause 4 (harassment) of the Editors’ Code of Practice. This states that journalists

“must not persist in questioning, telephoning, pursuing or photographing individuals once asked to desist; nor remain on their property when asked to leave and must not follow them. If requested, they must identify themselves and whom they represent.”

6.3 The anti-harassment service is intended, therefore, to provide members of the public and other individuals affected by the actions and behaviour of journalists with the means of making express the terms of the Clause 4 of the Editors’ Code of Practice.

6.4 Although the PCC has no formal responsibility for broadcast journalists, as these are not covered by the terms of the Editors’ Code, the PCC has, as a rule, forwarded desist notices to broadcasters, who have then taken appropriate action to ensure that their journalists abide by the will of the desist notice. Mr Abell’s written evidence to the Inquiry noted that:115

“This helps to reduce the problem of “media scrums”
that involve journalists from all forms of media.”

6.5 The anti-harassment service is accessed through the 24-hour helpline operated by the PCC. The PCC website provides comprehensive details of the service and the circumstances under which it might be used. The PCC has made clear that the initial telephone conversation with the affected party or, in some cases, their representatives is usually handled by a senior member of Commission staff. The PCC will also request an email setting out the concern or allegation from the individual in question. This email then becomes in effect the desist notice, which the PCC will then forward to a list of senior editorial and legal representatives. I note that Mr Abell has written that:

“Almost invariably, it is followed and the attention ceases.”116

6.6 In his written evidence, Mr Abell suggested that the service could be used “prophylactically”. He provided the example of a grieving family who might contact the PCC ahead of an inquest or funeral, to make their wishes known. He noted that in such circumstance “the PCC will act to disseminate their position immediately.” I note that in this regard, the PCC has produced specific guidance both for bereaved individuals and also for journalists in relation to grief and intrusion into grief. This guidance encourages the bereaved to use the anti-harassment service. This guidance has been disseminated to all UK police forces and coroners’ courts.117

6.7 The PCC has said in evidence that the anti-harassment service also had an application for individuals in the public eye. It was explained that a desist order acted as a check on the publication of paparazzi photographs obtained through harassment. Mr Abell stated:118

“The starting premise is that as soon as an editor publishes a photograph, he or she is taking responsibility for the conduct of the person providing it.”

6.8 He noted further that:119

“This places the onus on the editor to take care over the publication of photographs of the affected individual. This in turn means that non-compliant photographs are not bought by newspapers or magazines, and the market for them dwindles. This in turn affects the behaviour of the paparazzi in regard to the individual.”

6.9 The PCC suggested that the use of the anti-harassment service was the most effective means currently available of influencing paparazzi. Mr Abell’s written evidence explained that, as a class, the paparazzi were not regulated through any formal mechanism. Therefore, restricting the market for paparazzi photographs that may have been taken in breach of the code, or in contravention of a desist notice, helped to enforce standards of behaviour.120

Table D2.1 Total Number of Desist notices

Month Number of Desist and Private Advisory Notices*
Jan 2010 8
Feb 2010 4
Mar 2010 11
Apr 2010 5
May 2010 4
Jun 2010 1
Jul 2010 2
Aug 2010 3
Sep 2010 8
Oct 2010 7
Nov 2010 4
Dec 2010 2
Jan 2011 10
Feb 2011 9
Mar 2011 13
Apr 2011 12
May 2011 12
Jun 2011 11
Jul 2011 16
Aug 2011 10
Sep 2011 7
Oct 2011 5
Nov 2011 11
Dec 2011 14
Jan 2012 13
Feb 2012 12
Mar 2012 11
Apr 2012 17
May 2012 7
Jun 2012 6 (up to 27th June 2012)
Total 255
* The PCC makes no distinction between a “desist notice” and a “private advisory notice”. A desist notice is an internal PCC term for a notice in relation to Clause 4 of the Editors’ Code of Practice (harassment).

6.10 At the time of writing, the PCC had issued 255 desist notices since January 2010 (as set out in Table D2.1). I note that, whilst there is no significant variance in the recorded monthly figures, the trend is towards the more frequent issue of these notices.

6.11 I have heard little evidence that has been critical of the anti-harassment service operated by the PCC and it would be appropriate, therefore, to restrict myself to some general comments only. I note, first, that the service appears to be well regarded. The PCC has provided me with evidence of the efficacy of this service in helping those in often extraordinary circumstances to benefit either from a desist notice or in helping affected parties manage press and other media interest.

6.12 This additional evidence was submitted in response to comments made in evidence by Gillian Shearer, the Communications Director for the Cumbrian Police Force, in relation to shootings in Whitehaven in Cumbria in July 2010. Ms Shearer described what she regarded as the aggressiveness of the press, the impact on the families concerned and the failure by the press to adhere to the police notice requesting that the media respect the families’ wishes for privacy. She also criticised what she suggested was the failure of the PCC to respond meaningfully both to events but also the wishes of those individuals affected.121

6.13 In the evidence he has provided to the Inquiry, Michael McManus, the Transitional Director of the PCC, has sought to correct this perception of the actions of the PCC; he provided the Inquiry with a detailed description of the PCC’s activities in response to events in Whitehaven. It is to be borne in mind that although the events Mr McManus has described were extraordinary, they illustrate well the services the PCC is able to offer those individuals who become the subject of intense press attention. Mr McManus has written that:122

“On the day of the shootings, a member of PCC staff spoke briefly to Cumbria Police and followed up immediately with an email providing our contact details and explaining how we could help deal with concerns about media scrums and prepublication issues. A similar email was also sent to local hospitals.”

6.14 Mr McManus noted that during this difficult period members of PCC staff were in regular contact with police communicators. In addition, the PCC issued a private advisory notice on behalf of one individual who had become the subject of unwanted media attention and handled a number of formal complaints about published material. I note that the then Director of the PCC, Mr Abell, travelled on 9 July 2010 to Cumbria to meet with police communicators, local clergy and the editor of the Whitehaven News. The Whitehaven News subsequently published a letter from Mr Abell setting out the PCC’s services, and encouraging people to make contact with the PCC if they wished to do so.

6.15 It is also clear that the PCC undertook a great deal of work in relation to events in Whitehaven. Mr McManus notes that:123

“The PCC stayed in touch with the police after the shootings, and also initiated contact with the local Coroner”.
It is right to record that the PCC provided some assistance to Professor John Ashton, chair of the West Cumbria Shootings Recovery Group, in drafting a letter to the media requesting restraint ahead of the formal start of Inquest hearings in 2011. The PCC also worked with the police and Coroner to identify those individuals who had decided not to speak to the media; the Commission circulated a desist request on their behalf, requesting that they not be contacted.

6.16 It is clear that the work of the PCC was wide-ranging. In May 2011, the PCC organised a public meeting in Carlisle to enable local communities to speak to its representatives. The panel also included the then editor of the News and Star (Carlisle), Neil Hodgkinson. Mr McManus has also told the Inquiry that following these events, the PCC has amended the guidance it offers to families in dealing with the media following a death.

6.17 This is not to say that there are still not concerns with the anti-harassment service that should not be elaborated. Although the PCC website provides clear advice on the services available to members of the public with regard to harassment by journalist and photographers, it also sets a number of steps that the affected parties should follow before contacting the PCC. In certain circumstances, these steps might prove to be unduly difficult or, indeed, impossible to fulfil. They depend both on the goodwill and cooperation of the journalists and press photographers involved, as well as on the substantive efforts of the affected party who, feasibly, might not be in a position to comply with the suggested steps.124 The PCC website states:125

“There are a number of practical steps that you can take to avoid unwanted or repeated approaches:
  1. Get the name of the journalist and the newspaper or news agency for which they work. Tell them politely that you do not wish to speak to them and that they should not contact you again. Say that you understand that under the Code of Practice journalists must not persist in contacting you having been asked to desist. It will help if you tell them that you are saying the same to every journalist. This applies however a journalist is approaching you – whether it is at home, in a public place or over the telephone. You should then be left alone. If you are not, see point 5, below.
  2. If you are at home and too distressed to answer your door, pin a short note to it to say that you do not wish to speak to journalists and do not want to be disturbed.
  3. Similarly, if you are being telephoned repeatedly and do not wish to speak to journalists, alter your answerphone message to say that only personal callers should leave a message as you are not speaking to the media.
  4. Some people – particularly at times of grief or shock – find it helpful to ask a friend or neighbour who is not as closely associated with the story to deal with press enquiries. They can then answer your phone and door and either pass on a prepared statement (reflecting what is said in point 1) or turn down requests for interviews.
  5. If these measures fail and you feel that you are still being harassed, contact the PCC immediately.”

6.18 However, whilst the PCC guidance with regard to harassment is in most respects clear, there are significant caveats and exemptions to desist notices. In those cases where it has been impossible for the individuals concerned to establish the names of the journalists or newspapers in question, the PCC makes no claim to be able to take action. Even then, however, the website still encourages members of the public in such circumstances; it states thereafter that the PCC:126

“may then be able to communicate your concerns across the industry as a whole via a general “desist” message, which should alleviate the problem.”
In so doing, the website makes no claim to the certainty of success of any action on the part of the PCC in this regard.

6.19 Lastly, it is also important to underline that the website states that, in those cases in which there is a perceived public interest, there is no obligation on the part of the press to heed a desist notice. The website does not, however, elucidate what any public interest might be, and does not provide the public and more specifically the users of the service with any degree of certainty or clarity on this important issue. Perhaps of more importance, it leaves those individuals and their families who may already be in some distress open to continued and unwarranted press attention.127

7. Complaints

7.1 I will now look how complaints are dealt with by the PCC, considering in turn the different aspects of that system: who might make a complaint; the circumstances in which an individual might complain; the limitations on the ability of a complainant to make a complaint; the informal resolution of complaints; and complaints deemed inadmissible.

7.2 Before doing so, there is value is in setting into context the complaints handling process operated by the Commission. First, it is worth noting that the level of complaints received by the PCC is neither disproportionate nor excessive; the number received by the Irish Press Ombudsman is broadly similar, when adjusted for population, as is the number received by Ofcom, in relation to content. The number of complaints rejected by the PCC is also comparable to the numbers rejected by Ofcom. The majority of complaints to other regulators, however, are rejected because the complainant has not followed due process and has used the regulator in question, rather than the regulated company, as the starting point for the complaint. In such cases, the complaint is referred back to the company in question. However, this option is not available to the PCC as very few UK newspapers have formal complaints processes beyond the discretion of the editor.

7.3 It is also important that the Inquiry provides a context to any discussion of the complaint- handling process with the detail of the volume of complaints considered by the PCC. The figures for 2010, reported by the PCC in 2011, are the most recent full figures available, and are broadly similar to those received up to 2010. In that year, the PCC received a little over 7,000 complaints. Of these 1,687 resulted in a ruling128 and 44 in adjudications. Only two publications had more than one upheld adjudication against them.129

7.4 It is without doubt that the handling of complaints was the main and dominant part of the PCC’s business, taking up most of the day to day function of the Secretariat. After salaries, administration and property costs, complaints handling accounted for the greatest part of the remaining budget. Exact figures have not been provided to the Inquiry, but it has been suggested by witnesses that the PCC budget was only just sufficient for its purposes and only just stretched to cover these costs, with no remainder for any other actual or proposed function. This raises serious questions about the ability of the model proposed by Lord Black to provide for an investigatory arm within the funding envelope suggested.

7.5 Evidence presented to the Inquiry by the PCC, and taken from the routine surveying of complainants, suggests that the level of satisfaction among complainants with the conduct of complaints handling by the PCC is genuinely high.130 Lord Hunt said in evidence that that the satisfaction rate among complainants to the PCC was very high. He suggested that 80% of complainants were satisfied at the outcome of their complaint. However, this figure has been called into question by other evidence submitted to the Inquiry. It has been suggested that such a figure can only be reached if all complaints are understood to have been resolved in a manner satisfactory to the complainant.

7.6 Certainly, witnesses to the Inquiry have recognised that the secretariat and, in particular, the complaints handling staff at the PCC make considerable effort to be courteous and helpful. The MediaWise Trust, an independent press watchdog that monitors the behaviour of the press, has noted that in the surveys of complainants that they have undertaken, respondents score the staff highly against these criteria.131 Complainants also appreciate the speed with which PCC staff deal with issues raised by complainants in the course of the complaints.132

7.7 PCC witnesses to the Inquiry have certainly drawn attention to the apparent satisfaction at the speed of the complaint-handling process and the value placed on this by complainants. Sir Christopher Meyer gave evidence that, in most cases, resolutions were reached within a month of the complaint first being lodged.133 Given that most editors dislike the personal criticism inherent in any upheld adjudication, it is unsurprising that they will work hard to reach a resolution to the satisfaction of the complainant.

7.8 The PCC website makes clear that the Commission will deal with complaints as expeditiously as it is able. The website points to an average turnaround for the resolution of complaints of 34.8 days.134 However, in evidence presented to the Inquiry, the Media Standards Trust has suggested that this figure is misleading as it takes account of complaints which do not fall into the jurisdiction of the PCC and are therefore rejected. The Media Standards Trust notes that, although such complaints are passed on to the relevant body or organisation, they are regarded by the PCC as ‘resolved’. The Media Standards Trust suggests that the inclusion of such cases therefore serves to distort both rates of satisfaction, as well as the record of the time taken to resolve a complaint. The Media Standards Trust deduced from available PCC data that the actual figure of turnaround was an average of 106 working days, three times greater than the PCC figure.135 That said, there are limits to the analysis of any of the PCC data, as the Commission publishes information which omits the date on which a complaint is received.

Who can complain

7.9 The website states that the PCC is an independent body, which has been set up to examine complaints about the editorial content of UK newspapers and magazines (and their websites).136 It makes clear that the PCC exists to help complainants and that its services are free. The PCC website explains that the Commission will deal with all editorially-controlled material in UK newspapers and magazines (and their websites). Examples are provided:137

7.10 The website also explains that the PCC will also consider complaints brought in relation to the behaviour of journalists. Again, examples are provided. These are:138

The website further explains that Complaints have to be judged against the terms of Editors’ Code of Practice.

7.11 Most importantly, the website makes clear that the PCC will only “normally accept complaints only from those who are directly affected by the matters about which they are complaining.”139 It explains that individuals who meet that criterion are able to make complaints to the PCC and may raise complaints through the Commission against any newspaper, magazine or publication which subscribed to PressBoF.140 The website also explains the limited circumstances in which third parties are able to make complaints. Such complaints will be considered by the Commission only in those circumstances where the third party has signed authorisation to act on behalf of the individual concerned.141

7.12 Lord Hunt has said that there is “misunderstanding” around the PCC’s policy on complaints from third parties: they have always been able to bring complaints in relation to accuracy. However, it is clear from Chapter 1 above that, as a matter of history, it has proved difficult to bring third party complaints. Further, the evidence received from the PCC in this regard might be said to contradict this account. Thus, Mr Abell explained that it was not the policy of the PCC to take account of complaints from third parties.142 This evidence chimes with that received from a number of groups who drew attention to the difficulties they have encountered in the face of this policy.

7.13 However, the policy of the PCC has not been entirely inflexible, in particular in the fairly limited number of cases where a single article has given rise to a very large number of complaints. In some instances, complaints received from third parties may cause the PCC to contact the subject named in the article in question, or someone directly affected by that article, to consider whether they would take forward a complaint.143

7.14 In this regard the case of Stephen Gately is instructive. An article published by the Mail on Sunday about the singer’s death, written by columnist Jan Moir in 2009, prompted a record number of complaints from members of the public to the PCC.144 In response, the PCC contacted Mr Gately’s partner and asked if he would consider submitting a complaint.145 In the event, the PCC did not uphold the complaint, although it considered that the article had come close to breaching the Editors’ Code of Practice.

Time limits and delay

7.15 The PCC website clearly sets out a timetable for members of the public seeking to bring a complaint against a newspaper.146 Thus, in most circumstances, the PCC will not accept complaints made more than two months after the date of publication (or over two months after the end of direct correspondence between a given complainant and an editor, provided that correspondence was entered into straight away).147 The same section of the website also explains that complainants can formally submit a complaint to the PCC if the newspaper in question has failed to respond to the complaint within one week of the receipt of that complaint, but goes on to say that if the article in question remains available on the publication’s website, this time limitation does not usually apply. Beyond the strict timeframe set down by the PCC for the initial submission of the complaint, however, the times for each subsequent element of the complaints-handling process are not specified and no guidance is provided as to the likely duration of that process. Rather it suggests only that the steps involved in reaching the stage of an adjudication are less formal and are likely to be determined on a case by case basis.148

7.16 There are a range of resolutions that may be offered by titles. However, the PCC has no powers to stipulate the form of resolution that might be offered by the newspaper in question. Resolution can take the form of published apologies, the correction of the content in question in a future edition, the removal of the offending article from the title’s archives or online editions, or private letters of apology. In a limited number of circumstances, resolution might also include ex-gratia payments or donations to charities or other organisations.

7.17 Some witnesses to the Inquiry have complained about what they regarded as an unnecessary slow process that was prone to delay. Some have said that lengthy periods between correspondence and delay were not uncommon. According to an analysis undertaken by the Inquiry of complaints to the PCC between January 2009 and May 2012, declared to have been resolved during that period, the time taken to resolve a case can vary significantly. In the fastest example, the resolution of a complaint took one month; in the slowest case the process appeared to have lasted for three years.149 The value of an apology or other resolution after such a period of delay is questionable.

7.18 Will Moy of Full Fact stated that whilst some complaints resulted in a prompt response from the newspaper in question, sometimes within a day of two, in other cases the process of reply was much slower, taking as many as 21 days.150 In a limited number of circumstances no reply had been received from the newspaper.151 In its evidence, Full Fact provided details of a number of complaints, including one about an article published in the Evening Standard, where that newspaper did not respond until two months after the initial submission to the PCC.152 Similar experiences have been documented in the evidence provided by ENGAGE.153

7.19 The majority of complaints submitted to the PCC and ruled admissible are settled through a process of informal mediation between the complainant and the title in question. Only a very small number of complaints are not resolved in this manner, and those which fall into this category go forward for adjudication by the PCC. Complainants have a period of one month to appeal in writing to the Independent Reviewer should they wish to contest the PCC’s decision (although, as already identified, the Independent Reviewer will only look at the way that the PCC handled the complaint and not its merits).154 The PCC website provides details of a total of 5,241 complaints that have been the subject of PCC rulings since 1996.155 It lists 257 such complaints in 2012, (as set out in Table D2.2) of which 96.1% were informally resolved, 1.6% were upheld at adjudication and similar a proportion were not upheld.156 In 0.8% of cases the PCC found that the newspaper question had taken sufficient remedial action to declare the complaint resolved.

Table D2.2: Complaints to the pCC: 2009-2012

Year Total Number of Complaints Resolved Adjudicated Complaints
Upheld Against Sufficient remedy offered
  No. % % % %
2012 257 96.1 1.6 1.6 0.8
2011 588 93.5 3.2 1.4 1.9
2010 499 91.4 4.0 4.0 0.6
2009 400 86.5 7.0 5.0 1.5
Total 1744 91.7 4.1 3.0 1.3

7.20 Data for 2011, 2010 and 2009 suggests a similarly high proportion of complaints were resolved through informal mediation processes (93.4%, 91.5% and 86.5% respectively), with only a correspondingly small percentage of case taken forward to formal adjudication. These figures show a trend towards the informal resolution of an ever larger number of cases, although this is from an already high base. Unfortunately, these figures do not relate to figures published in relation to complaints in the PCC Annual Reviews for 2009, 2010, and 2011.157 Those Reviews refer to complaints received in a given year, and break down the details into somewhat different categories.

7.21 It has been suggested by the PCC that the very large number of cases resolved informally, and through no process of adjudication by the PCC or the sustained intervention of the PCC through mediation, represented a ‘substantial and hidden success of self-regulation’ .158 Others have claimed that the odds are heavily stacked against the complainant, and that the PCC does not always appear to be neutral. But Mr Abell suggested that the position of the complaints handler was one of neutrality:159

“So I don’t think it’s a neutral act by complaints people. I think their job is to grip the issues and to try and bring them to a conclusion, and that will invariably be by assisting the complainant.”

7.22 In particular, Mr Abell suggested that there was no validity in the assertion that the PCC’s preferred outcome of a mediated resolution was in the better interest of editors and newspapers rather than the complainant.160 Sir Christopher Meyer also rejected the characterisation of the complaints-handling process as attritional, in which intense pressures were placed on the complainant to resolve issues through mediation rather than pursuing a decision through the PCC and that the effort in reaching that resolution wass made disproportionately by the complainant.161

CHAPTER 1
THE LEGAL FRAMEWORK

1.

1.1 An Inquiry into the culture, practices and ethics of the press might not be thought to engage or require detailed consideration of the law but, as many witnesses have correctly identified, the starting point from which any assessment of the way in which the press goes about its business must be the general framework of the law. In that regard, there have been criticisms that the press is already far too over-regulated with particular reference to the complications of the ever-changing criminal and regulatory law, itself requiring training for journalists, as well as the equally ever-developing civil law. In this second category falls not only the jurisprudence in this country (in respect of which particular criticism has been made of the law of defamation) but also the effect of the Human Rights Act 1998, which gave further effect in domestic law to the rights and freedoms guaranteed under the European Convention on Human Rights and Fundamental Freedoms 1950 (Cmd. 8969) (ECHR). That has led to litigation involving the press that has not infrequently been taken through the UK courts and has then been the subject of further argument before the European Court of Human Rights.

1.2 The purpose of this Inquiry is not to analyse the law in any depth but, in order to provide a wider picture to anyone interested in the issues affecting the press, it is necessary to provide some background in relation to the criminal law, the civil law and the regulatory framework provided by the Data Protection Act 1998. Where the law touches upon specific issues which fall within the Terms of Reference, a degree of analysis will follow in the text. Otherwise, a general outline has been provided in Appendices to the Report. Nobody should rely on the Appendices as a complete review of the nuances of the law: there are text books for that purpose. It is intended only to identify the broad landscape.

1.3 The criminal law can touch upon the work of journalists in many ways and inevitably prescribes the ways in which it is acceptable for stories to be obtained. A brief summary of aspects of the criminal law most likely to be engaged in the pursuit of journalism is at Appendix 4 but it is neither complete in detail nor is it comprehensive. By way of example, aspects of the behaviour of Neville Thurlbeck as he pursued a follow up to his scoop relating to Max Mosley were described by Mr Justice Eady in the ensuing civil litigation as containing “a clear threat to the women involved that unless they cooperated … (albeit in exchange for some money)” making the point that it was “elementary that blackmail can be committed by the threat to do something which would not, in itself, be unlawful.”1 Blackmail is not, however, a crime that is covered in this Appendix. There is no doubt room for other potential offences to be engaged in the unprincipled pursuit of a story.

1.4 In addition to the substantive criminal law, it is also necessary to consider aspects of criminal procedure which recognise the important place that journalism plays in our society and accords to journalists special protection in relation to journalistic material. The restrictions and limitations on the powers of the police to search for or seize such material add to the privileges that society gives to those involved in this work: they are summarised in Appendix 4.

1.5 The same is so for the civil law. Developments have undeniably broadened the focus in defamation beyond meaning, justification and fair comment. In addition, new concerns surround the concept of privacy. This has developed with the increasing recognition of the significance of Article 8 of the ECHR which, subject to exceptions, provides for everyone the right to respect for his private and family life, his home and his correspondence. Running parallel to Article 8, however, is Article 10 which, similarly subject to exceptions, provides that everyone has the right to freedom of expression, including the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. A brief summary of the most important aspects of the civil law insofar as it affects journalism or journalists is set out at Appendix 4. Again, it is not intended to be exhaustive.

1.6 A separate analysis has been completed in relation to the law of data protection (see Appendix 4). That is because it has criminal, civil and regulatory aspects and stands outside the areas of law so far outlined with the Information Commissioner being accorded, by statute, powers and responsibilities which go beyond the power to prosecute, or to commence civil proceedings. Given that the Terms of Reference specifically cover “the extent to which the current policy and regulatory framework has failed including in relation to data protection” the remit of the Information Commissioner will require detailed analysis beyond the brief synopsis of the legislative framework.2

1.7 Against the background of this framework, this Part of the Report will focus chronologically on the criminal investigations that have been undertaken both in relation to data protection and interception of mobile telephones, the outcome of those investigations and the reaction not only at the time but as further material entered the public domain. In particular, the milestones that led to this Inquiry include:

  1. the publicity accorded to the investigations by the Information Commissioner through reports to Parliament and discussions with the PCC;
  2. the outcome of each of the criminal prosecutions and, in particular in relation to Operation Caryatid, the police strategy adopted thereafter;
  3. the reaction of the press (and, in particular, the News of the World) to the prosecutions along with the response of the PCC;
  4. the impact of civil litigation;
  5. the investigations undertaken by the Guardian and, subsequently, the New York Times along with the reactions of the police and Parliament to each of the articles;
  6. the further civil litigation and the proceedings for judicial review of the strategy adopted by the police following the successful prosecutions of Clive Goodman and Glenn Mulcaire;
  7. the re-opening of the criminal investigation and the reactions thereafter of News International, the PCC and Parliament.

1.8 The purpose of this Part of the Report is to provide what is a vital narrative to the background against which the criticisms of the culture, practices and ethics of the press (or part of the press) can be considered. It starts with the police operations that led to Operation Motorman, which was an investigation that fell to the Information Commissioner. The narrative then passes to Operation Caryatid, the police investigation of interception of voicemail messages (phone hacking) and its consequences, which continue to be felt today.

CHAPTER 2
POLICE INVESTIGATIONS START