Wednesday, 16 November 2011
LORD JUSTICE LEVESON
Right. Do I understand the order of
the battle is first the National Union of Journalists
and then the Guardian and then Mr Sherborne? Thank you.
Opening submissions by MS STANISTREET
Thank you, sir. Yours is an unprecedented
inquiry into the press that could have far-reaching
implications for our industry, so we at the National
Union of Journalists felt it was essential for the union
that's the voice for journalists and for journalism
throughout the UK and Ireland to play a central role.
We were therefore very grateful to you for recently
granting us core participant status.
LORD JUSTICE LEVESON
Can I encourage you to slow down
LORD JUSTICE LEVESON
The NUJ is an independent union and has
been representing journalists throughout the media
industry for over 104 years. We're a democratic, lay
member-led grass-roots organisation. It is members in
our workplace chapels and our branches who shape union
policy and direct priorities.
We speak on behalf of our 38,000 members who work
throughout the industry as freelancers and in staff
roles in newspapers, news agencies, magazines, online,
book publishing, in public relations and as
Our headquarters are here in London and we also have
offices in Glasgow, Manchester and Dublin.
We represent members collectively where we have
collective bargaining rights and recognition, and
individual representation also forms a large part of our
work. As well as our bread and butter industrial work,
we campaign on issues ranging from quality journalism
and defending public service broadcasting to fighting
for protection of sources and press freedom.
I shall say something briefly of my own experiences
as a journalist and as a trade unionist, and in case
it's thought by including these few sentences in the
NUJ's opening statement I'm avoiding the possibility of
challenge by cross-examination, I will exhibit this
opening statement to a witness statement and the Inquiry
team can consider, if it wishes, to call me as a witness
at an appropriate time.
I was elected General Secretary of the NUJ in April
and took over the role in July. For the three previous
years I was the elected Deputy General Secretary of the
union and had previously been the NUJ's lay
vice-president and president after having served on the
ruling National Executive Council for eight years,
representing all members of the union working in
newspapers and news agencies.
During that time, I was working full-time as
a journalist. I joined Express Newspapers in 1999,
working on the Sunday Express. During my time there,
I worked in the city department as an interviewer and
feature writer, then for the news desk where I worked as
a feature writer and then books editor until I was
elected to the full-time role of Deputy General
Secretary in the NUJ.
It was my experience as an NUJ chapel rep at the
Express, where we operated a joint chapel between the
Daily Express and Express and Daily Star titles,
representing members individually and collectively in
a whole range of issues, that galvanised my activism
within the NUJ and gave me a deep insight into the
issues facing journalists working in the press today.
My team of officials represent and engage with
journalists working in national and regional newspapers,
tabloid and broadsheets alike, on a daily basis.
It's vital that in an Inquiry reflecting on the
problems and issues within our industry, that the
concerns, the experiences and insights of ordinary
working journalists are heard and I know you're very
much alive to this. They are the workers at the sharp
end who deal with the reality of life in a pressured,
busy newsroom every single day. Our members strive on
a daily basis to serve the public, balancing the need to
inform, educate and entertain with the need to serve the
competing and sometimes conflicting demands of
publishers and commercial interests. It's a daily
challenge and it's quite frequently a battle.
The NUJ is currently making a good deal of effort to
identify journalists to give evidence and to share their
experiences with the Inquiry, however the stark reality
is that in many workplaces there's a genuine climate of
fear about speaking out. In order that it's not simply
those who have retired or who have been made redundant
and left the industry who feel able to make
a contribution, we're working with the Inquiry team to
ensure that journalists who wish to contribute to the
Inquiry can give their testimony in confidence to afford
them protection from retribution.
The fear is not necessarily just of immediate
punishment but of finding that a few months after your
Inquiry ends, a journalist who has spoken out may find
herself on a list of redundancies. We support your
draft protocol on anonymity and will discuss specific
measures in relation to particular witnesses with the
Of course, predictably some of the newspaper owners
are unhappy about this, but the reality is that putting
your head above the parapet and speaking out publicly is
simply not an option for many journalists who would fear
losing their job or making themselves unemployable in
the future. In our experience, that fear has been
a significant factor inhibiting journalists from
defending the principles of ethical journalism in the
workplace, and in media organisations hostile to the
concept of trade unions there's a particular problem.
There's already been discussion of the important
role journalism plays. Journalism is a force for good,
a vital part of any democratic society. People choosing
to enter the industry don't, believe me, do it for the
money or the career prospects. They become journalists
because they want to make a difference. They want to
play their part in holding power to account, to shining
a light in those dark recesses of society. They want to
do their job well, do it professionally and they want to
keep their communities informed and expose wrongdoing
and the reason why we're all here today is because of
excellent, dogged investigative journalism which has
brought this scandal to light.
Journalists do not, however, operate in a vacuum.
It's important to place the examination of the
industry's culture and practices in the broader context
of the current state of the industry. The newspaper
industry, particularly in the local and the regional
press, has been in crisis over recent years. The scale
of cutbacks, redundancies, casualisation of the
workforce and entire closure of titles has made it
a very challenging and insecure time for journalists.
This has been the inevitable result of the entire
economic model within the newspaper industry. Greedy
employers have stripped profitable and once proud
newspaper titles of their assets. When the days of 25,
30 per cent profits ended, rather than settle for more
modest profits that would do nicely for most of our
major blue-chips, the response of some of the major
newspaper groups was to slash costs further, cut the
bottom line, sacrificing quality and content in the
This is not a sustainable business model and we're
seeing the results of this bad management on a daily
basis with ever more cutbacks and redundancies. These
owners are playing fast and loose with our industry.
You can't do that without sacrificing quality
journalism, you can't do it without cheating readers of
the newspapers they deserve and you can't do it without
sounding the death knell of an industry that plays such
a critical role in our society.
In this context, the more resource-intensive areas
of journalism such as specialist correspondence and
investigative journalism have become something of an
endangered species and a journalist's ability to get out
there and research and deliver work thoroughly has been
diminished. Agency copy is topped and tailed, press
releases are churned out as news. The pressure on
journalists to deliver --
LORD JUSTICE LEVESON
I'm going to ask you to slow down
again and I'll tell you why, because there are parts of
what you're saying that aren't being picked up because
of the speed at which you're speaking.
LORD JUSTICE LEVESON
That's all right.
The pressure on journalists to deliver is
relentless, often to unpredictable and unreasonable
timescales and without the resources to do the job well.
Such pressures lead to shortcuts and can result in the
abandoning of fundamental principles. That's why it's
important for your Inquiry to understand the reality of
newsroom culture and the pressures that some journalists
in some workplaces have come under to deliver the goods,
to write stories that are inaccurate or misleading.
These practices are the product of the culture. You
cannot separate the practice of journalism and the
culture which underpins the industry. To paraphrase the
Irish poet WB Yeats, you cannot separate the dancer from
It's not journalists who develop and foster the
culture in any one newspaper group. In any workplace,
where does the power reside? Not at the bottom, where
the majority work to get the job done. It's at the top.
In journalism, the reality is that there's often a stark
expectation from on high: deliver the goods, get the job
done, bring in the story whatever the means. If you
don't, well, the consequences are often simple and
At the heart of any newspaper culture is the editor.
What he or she says goes. For anyone who's worked in
a newsroom, the concept of an editor who didn't know
just what their troops were getting up to is laughable.
Editors rule the roost. They set the tone, not just in
the editorial line of their newspapers but in the way
that the entire newsroom operates. What's accepted,
what's not, the tone of an editorial conference, whether
bullying, which is sadly all too commonplace, goes
unchecked, the dispensing of praise or the nature of the
inevitable roasting when the goods aren't delivered.
To imagine editors as mere bystanders whose
underling reporters run rings around them would be
fanciful in the extreme. That's why, to anyone with any
journalistic nous, the peddling of the line that hacking
was the action of a single rogue reporter operating in
splendid isolation was as daft as it was unbelievable
and that's why it's vital when considering the culture
and the practices of the press to examine the broader
context of how that culture is forged and cultivated.
For NUJ members, a significant way in which they
input collectively into that workplace culture is
through their workplace NUJ group, the chapel, as we
call them, but that can only happen in places where
there is a functioning organised chapel. This mainly
happens in places where there's a legal recognition
agreement in place and a collective bargaining
agreement. Mere membership is not enough. There are
many newspapers where journalists feel very anxious
about their employer knowing that they're members of the
NUJ or that they're active in the union outside of work.
Nor is the limited right to representation in
disciplinary or grievance proceedings enough. The only
way a union is able to sufficiently and actively protect
the interests of its members is by the establishment of
genuine collective bargaining.
That process involves putting other issues central
to a journalist's work, whether that's staffing
resources, commercial pressures, bullying behaviour in
the work place or ethics, squarely at the negotiating
table. Believe me, senior executives in this industry
only sit down with our workplace reps and with NUJ
officials because they're obliged to, because we have
recognition and an agreement on collective bargaining.
Whilst I'm sure there are many employers who would
rather not have to bargain collectively, there are many
media employers who have a particularly intransigent
view in this regard and will go to great lengths to
block the NUJ from its titles.
Take Rupert Murdoch. He created and funded his own
proxy union, the News International Staff Association,
which was later refused a certificate of independence by
the certification officer because of its lack of
independence from the employer. This was established on
the eve of the legislative changes being introduced that
saw the restoration of trade union recognition rights,
all to keep the NUJ and our sister unions out of
Staff at News International, mostly on the
News of the World, who have been dismissed or made
redundant in the wake of the hacking scandal, have
learnt in recent months to their cost the impact of not
having strong and independent workplace representation.
There cannot be a genuinely robust and confident
representation from any organisation that's not
independent whereby means of its funding and actual
existence is effectively in the pocket of the company's
owner and senior executives.
A well-organised union provides a counterbalance to
the power of the editors and the proprietors. It can
limit their excesses and give journalists the confidence
to raise their concerns. The collective can tackle
stress and bullying and defend principles of
journalistic ethics as well as dealing with pay and
terms and conditions.
One of the many members to come to the NUJ in the
wake of the closure of the News of the World was
Derek Webb. He, has you may have seen, told his story
to BBC's Newsnight in some depth last week. Mr Webb was
hired as a private detective by the News of the World
and carried out surveillance for the company for many
years. However, he alleges that in the wake of the
arrest of the paper's royal editor, Clive Goodman, he
was taken aside by a senior executive on the
News of the World and told he had to "stop being
a private detective and become a journalist". The same
senior executive also apparently told him that he must
join the NUJ and acquire an NUJ press card. This he
duly did. For the NUJ this is a breathtakingly cynical
move on behalf of the News of the World but also an
interesting perspective on an organisation that's so
hostile to the NUJ. Clearly in the minds of senior
executives at News International, presumably a proper
journalist is one who is a fully fledged NUJ member with
a union press card rather than the ones
News International dispenses to its staff.
You suggested earlier this week that the essential
question in this Inquiry might well be: who guards the
guardians? The NUJ can help here. For one of the key
ways of ensuring "systems within an organisation which
promote or induce good behaviours and tend to expose bad
behaviours", to quote Mr Jay, is for journalists to have
the protection of a trade union.
The establishment of collective bargaining is one
vital means of preventing the unacceptable "culture,
practice and ethics" under investigation in this Inquiry
should not be seen as some form of special pleading on
behalf of a vested interest group, for the right to
collective bargaining is as fundamental as the right to
privacy under Article 8 of the Convention and the right
to freedom of expression under Article 10.
Article 11 protects everyone's freedom of
association and "the right to be a member of a trade
union for the protection of his interests".
In a unanimous Grand Chamber decision of Demir and
Baykara v Turkey, the European Court of Human Rights
"The right to bargain collectively with the employer
has, in principle, become one of the essential elements
of the 'right to form and to join trade unions for the
protection of [one's] interests' set forth in Article 11
of the Convention ..."
The interrelation between Article 11 and the right
to collective bargaining had been earlier described in
Wilson and others v UK, a case of an NUJ member which
arose out of the considerable steps Associated
Newspapers took to derecognise and disempower the NUJ in
the 1980s. In that case, the court, which included
Lord Phillips, as he now is, held:
"The essence of a voluntary system of collective
bargaining is that it must be possible for a trade union
which is not recognised by an employer to take steps
including, if necessary, organising industrial action,
with a view to persuading the employer to enter into
collective bargaining with it on those issues which the
union believes are important for its members' interests.
Furthermore, it is of the essence of the right to join
a trade union for the protection of their interests that
employees should be free to instruct or permit the union
to make representations to their employer or to take
action in support of their interests on their behalf.
If workers are prevented from so doing, their freedom to
belong to a trade union, for the protection of their
interests, becomes illusory."
The court held that the UK had a duty to protect
that right. We don't expect to persuade you to
recommend legislation to protect collective bargaining
for journalists. We will seek to persuade you to make
recommendations which recognise the vital role the NUJ
has in protecting journalists from, amongst other
things, pressure to engage in unethical practices. We
will produce a note on the legal matters referred to
here, which we hope you will find of value.
In case it might be thought that the empowerment of
trade unions to protect the interests of their members
at work is not the stuff of public inquiries such as
this, the NUJ would draw attention to the recognition
given to the role of trade union representatives in the
protection of the safety of employees by Lord Cullen in
the Piper Alpha Inquiry report, a role which finds
statutory form in the Offshore Installations Regulations
We at the NUJ believe that there's a clear link
between a strong trade union presence in a workplace and
a strong ethical awareness. Collective trade union
representation is a moral human right and journalists
should not be denied this right in our newspapers.
I can speak from personal experience when I say that
having the collective confidence of a robust union
presence can make an enormous difference when
individuals want to speak out on matters of journalistic
In September 2001, when I was one of three NUJ
chapel reps at Express Newspapers, we took collectively
the unprecedented step of making a complaint to the
Press Complaints Commission directly about the reporting
of the Daily Express' coverage of asylum seekers. Some
journalists at the title, particularly those involved in
the coverage, felt so upset and so angry about the
racist tone of the Express's coverage and so powerless
to individually do anything about it that they were
considering leaving their jobs. The NUJ chapel met and
issued a public statement about the hate-stirring front
page headlines, one of which was "Asylum seekers run for
your lives", and what we felt to be editorial
interference from the proprietor.
It wasn't the only public stance NUJ members felt
impelled to take. In 2004, the chapel once again
complained to the PCC over the inflammatory and
blatantly inaccurate coverage of so-called gypsies
coming to the UK during the enlargement of the EU. In
both cases we believed the paper was guilty of breaking
the PCC's code of conduct on discrimination, which
"The press must avoid prejudicial or pejorative
reference to a person's race, colour, religion, sex or
sexual orientation or to any physical or mental illness
Again in 2006, journalists on the Daily Star walked
off the editorial floor to hold an urgent chapel meeting
and demand that a spoof page called the Daily Fatwah,
whose only purpose was to mock Islam, was pulled. The
management backed down and the page was indeed pulled
that night, and their collective intervention on
a matter of journalistic ethics made a difference.
In each of these cases a common factor in the
offending coverage was editorial decisions on the
content were being made on the basis of the resulting
spike in sales. It would be impossible for a single
journalist to tackle this.
Another common factor is that the PCC did absolutely
nothing to help. In fact, our complaints merely
warranted a short written reply from the then chair,
Sir Christopher Meyer, saying he was satisfied that no
journalists were put under pressure to write inaccurate
or unethical material. Perhaps he got that expression
from the paper's then editor who sat with him on the
PCC, but he certainly didn't it get it from any
journalist at the Daily Express as no one from the PCC
even contacted us to investigate.
The NUJ is a trade union which has its code of
conduct at its heart. It was established in 1936 and is
embedded in our rule book and by signing our membership
form it's made clear to journalists that they're signing
up to abide by the code. We have an ethics council
which is a key part of our union structures. We run an
ethics telephone hotline which journalists regularly
access to gain advice and support.
Of course as part of that code, we commit to
robustly defending the public interest test and the
ability of journalists to do their jobs freely and
professionally and we'd vigorously defend members using
other means, sometimes of course unpalatable and
unpopular, if it's in the pursuit of a story that is
clearly in the overriding public interest. That's the
duty of a journalist engaged in informing the public.
But our code is also about public accountability.
It commits journalists to do nothing that would intrude
into anybody's private life, grief or distress, unless
justified by overriding consideration of the public
interest. It commits journalists to do their utmost to
correct harmful inaccuracies, it commits them to
obtaining material by honest, straightforward and open
means with the exception of investigations that are
overwhelmingly in the public interest and where that
evidence can't be obtained by straightforward means.
Clearly the industrial scale of the phone hacking at
News International and the breadth of the scope of the
stories generated as a result did not comply with the
principles of the NUJ's code of conduct.
It is in that context of the cut and thrust business
of journalistic ethics and the commercial and the
editorial pressures that our members can face that we've
been campaigning for some years now for a conscience
clause in contracts of employment, so when journalists
stand up for a principle of journalistic ethics they
have a contractual protection against being dismissed,
and crucially so they have the confidence and the
security to put their head above the parapet in the
The idea of a conscience clause was raised by the
NUJ when giving evidence to the Commons Select Committee
into privacy and media intrusion back in 2003. The
committee recommended such a clause but it was rejected
by both the PCC, which has no say in industrial matters,
and the Society of Editors, which does.
The text of our clause is:
"A journalist has the right to refuse assignments or
be identified as the creator of editorial which would
break the letter of the spirit of the NUJ Code. No
journalist should be disciplined or suffer detriment to
their career for asserting his/her rights to act
according to the Code."
That's why the NUJ does put forward special pleading
on the issue of a conscience clause. The introduction
of such a contractually binding protection will be
a great advance for journalists and for journalism in
We'll come on to the detail of press regulation and
any future model in the later part of your Inquiry, but
it's the view of the NUJ and its members that the PCC
has failed, abysmally so. We would absolutely resist
any changes that would lead to anything akin to the
licensing of journalists or anything that would in the
slightest dilute press freedom. That would not be
a solution to the problems the industry finds itself in.
But for years we've had the media bosses' model of
self-regulation. It's one that excludes both the
producers and the consumers of the media output and
represents only the owners. The general public and
journalists themselves have had to contend with what's
been little more than a self-serving gentlemen's club
and not even a club that all newspapers are obliged to
join, as illustrated so finely when Richard Desmond's
Northern & Shell company walked out of the PCC. It's
a model that's failed. But there are models out there,
models that have teeth and provide more than a thin
veneer of accountability on the owners' part, models
that hold newspapers to account and genuinely deliver
when it comes to protecting the interests of the public
and of journalism.
An interesting and relevant example is the
establishment of the Press Council of Ireland in 2007.
The NUJ played a key role in the establishment of the
PCI, which is based on a model that's more co-regulation
than self-regulation. We're represented alongside
editors and civic society nominees on the basis of full
equality on the Press Council. Our own Irish Secretary
Seamus Dooley sits on the council's code committee and
it's interesting to note that the very same newspaper
groups whose executives won't sit in the same room as
the NUJ in the UK manage to work quite happily and
collaboratively across the water in Ireland as part of
the Press Council of Ireland. Just yesterday our Irish
Secretary attended a meeting of the Finance and
Administrative Committee of the PCI alongside a senior
represent of News International.
Irish journalism and Irish society has benefited
from such enlightened co-operation in the public
The increasing consolidation of media ownership and
the disproportionate power and influence this provides
with it also needs to be considered by this Inquiry.
When newspaper titles are bought and sold, there should
be a rigorous public interest test. The highest bidder
shouldn't be allowed to simply walk away with our
national titles in their pocket and the accompanying
power and influence that brings.
Currently there's a dearth of genuine scrutiny and
most sales are usually completed on the basis of
a secretive sealed bid where it's only the money that
talks. It should not be possible for our titles,
whether that's a national newspaper title or a local
newspaper, to be bought and sold on the whim of one man
or corporation or used as pawns to further an
individual's commercial or ideological interests.
A media owner shouldn't have our police and our
politicians in a stranglehold for fear of their personal
peccadillos being splashed over the front pages of a
newspaper. No media group should be allowed to achieve
I've given some examples today of how a robust,
well-organised NUJ presence can make a real difference
and a positive contribution to the culture within
a newspaper and to the broader industry. We're
currently engaged in efforts to encourage our members to
come forward and play their part and enable you and the
Inquiry team to have as good an insight as possible into
the reality of their working life and newsroom culture
for journalists working across the industry. This will
provide examples from across the newspaper sector,
including testimony from journalists who can shed real
light on the culture within the News of the World, on
cases of bullying at senior level, all key factors we
believe led to the scale of hacking within the
newspaper. I hope to be able to submit more detailed
written testimony arising from this work in the coming
For us, this is an Inquiry that will shape the
future of our industry and it's vital that the views of
working journalists and journalism are heard and
seriously considered. The NUJ will do all it can to
assist and to ensure our members can concentrate on what
they do best and what gets the vast majority of
journalists out of bed each day, which is serving up
quality journalism that informs and entertains.
Thank you for giving us the time this morning.
LORD JUSTICE LEVESON
I've deliberately not interrupted.
Barristers get used to being interrupted but I didn't
want to interrupt you, but I wonder if I could just ask
one question based upon what you've said.
You present the picture of journalists, which I'm
sure is right, entering your industry to make
a difference and holding power to account. I equally
understand the other dynamic of people fearing for their
future employment. But one of the features which has
been already identified is that there was a great gap
between the Guardian's exposure of hacking and anybody
taking it up of some 18 months, and I wonder, if
everybody knew about it, why it wasn't that one of your
fearless journalists didn't do something about it.
Well, I think I've outlined how impossible
it is for many journalists individually to raise these
issues. Many of our national newspaper titles don't
have NUJ collective representation or a workplace
culture where individuals feel that they can raise
things and not be fearful for their jobs.
LORD JUSTICE LEVESON
Just because you recognise, I don't
know, in how many of the national titles are the NUJ
We're represented at the Express titles, at
the Guardian, where there's a very strong, robust NUJ
chapel, where the vast majority of staff at the Guardian
are members, I think it's 95 per cent of the workforce
there. We're represented at the Telegraph. We're not
represented at Associated Newspapers -- or recognised,
rather, at Associated Newspapers or News International
or the Mirror national titles. We are represented, have
recognition agreements with many of Trinity Mirror's
local newspaper groups.
LORD JUSTICE LEVESON
Okay. So what percentage of the
industry do you --
In national newspapers? About half.
LORD JUSTICE LEVESON
Yes. All right. I'm sure we'll get
a great deal more as the Inquiry proceeds. Thank you
Right. I think we can probably proceed to hear
Mr Rusbridger. I'll offer you the same courtesy that
I don't offer to members of the bar, which is to keep
quiet. Alternatively, you may prefer that if I have a
question which arises on anything you say, I ask it and
interrupt, but I'm happy to take my lead from what you
I'll take you up on your promise not to
interrupt, if you ask questions at the end.
LORD JUSTICE LEVESON
You prefer me to do that?
LORD JUSTICE LEVESON
Right, very good. You ought to know
that it is a courtesy which I won't extend to the bar.
They're used to thinking on their feet. I'm
Opening submissions by MR RUSBRIDGER
Thank you for this opportunity to address the
Inquiry at such an early stage.
I wanted to add to some of the context which we hope
this Inquiry takes into account as well as setting out
Guardian News and Media's main areas of concern.
First, we hope that it's apparent to all that the
events that led to this Inquiry were shocking and
immensely damaging. Damaging because they impacted on
the trust in all journalists. Shocking for what they
revealed about one powerful and dominant company, about
the responses of the police and the flawed nature of
regulation, about the limitations of Parliament and the
initial unwillingness of much of the press to write
about what had been going on at the News of the World.
There was, in short, a failure of the normal checks and
balances in society to hold power to account.
This Inquiry is being held, as you know and you've
heard this morning from the General Secretary of the
NUJ, at a time of existential threat to the idea and
sustainability of journalism itself.
Commercially, newspapers may struggle to survive in
the form in which they currently exist. Digital media
have sucked advertising out of the printed press,
circulations are declining at a rate of up to
10 per cent a year. While digital audiences are growing
fast and the possibilities are great, no digital revenue
model yet offers certain hope of maintaining editorial
endeavours at anything like their current levels.
Editorially, the notion of journalism itself is
being transformed. Until recently, a newspaper was
something produced by a relatively small number of
people in the know for a large number of people who
weren't in the know. Now virtually everyone has the
capacity to publish and to inform themselves. The once
a day deadline has been replaced by a 24-hour continuous
news cycle, newspapers are moving from text to
a combination of video, audio and data, as well as text,
so there's a convergence of media which will have
implications for readers and which may well have
implications for regulation.
What was once a one-way publishing process is now
more responsive. Most editors are live to the potential
benefits of harnessing the ability of others to
contribute. They're beginning to think: if we add what
you know to what we know, we may end up with a fuller,
We also live in a world in which every reader
becomes a potential fact checker. Social media allows
anyone to respond to, expose, highlight or contradict
what we write and we have the choice whether to pretend
that this world of response doesn't exist or to
incorporate it into what we do.
The more we incorporate it, the more journalism
becomes, as it were, plastic. There will be less
pretence that we are telling the whole truth and nothing
but the truth about a story frozen at the moment that we
published it, what Walter Lippman in 1922 called the
confusion between news and truth. A journalist today
lives with the knowledge that there will be an external
reaction to much of what she or he writes within minutes
of publication. Journalism today is often less
a snapshot, more a moving picture.
Three more brief pieces of context, especially given
the title of your first module.
First, readers are, as in the rest of their lives,
consumers. They expect organisations, whether public or
private, to be responsive and accountable. Newspapers
have often been poor in responding to challenge.
Secondly, privacy is not a fringe concern, it's
mainstream. Virtually every citizen is becoming attuned
to what a significant concern privacy is in the modern
world. Anyone who has a Facebook account, who uses
Google, who is treated by the NHS, who talks to the
police, who has an Oyster card, who drives too fast, who
shops at Tesco, who has insurance, who puts their bins
out on a Thursday night, who banks online, who has
a mobile phone, everyone is more conscious about privacy
and how organisations, public or private, handle it.
Thirdly, we as citizens are more conscious of the
idea of a rights-based society with consequential
responsibilities. I hope that adds to the context.
Now a few suggestions, the first of which relates to
the events before July 2011.
Clearly a major focus of your attention in part 2
will be the phone hacking itself. Equally important, in
our view, in part 1, is to look at the failures of the
18-month period once the so-called "rotten apple"
defence had been exploded by the Guardian, ie from July
2009 to late January 2011.
These months are, it seems to us, worth examining
because they show the dogs that didn't bark. Why didn't
they? What accounts for the reluctance of the police to
investigate phone hacking properly even in July 2009?
Why did it take four inquiries before they took it
seriously? Why did senior officers make untruthful
statements about what had happened? Were MPs
intimidated or put under surveillance or threatened?
Why did the PCC fail in its attempts to get at the
truth? Why initially was there such a widespread
reluctance amongst other journalists to touch the story?
Why did it take an American paper to see the
significance of an issue to which so many British
journalists appeared blind?
To give one example not yet raised I believe in the
Inquiry: no British news editor apparently considered it
interesting that a former News of the World journalist
was in November 2009 awarded the stunning sum of
£800,000 for suffering what an employment tribunal
regarded as a culture of bullying at the newspaper by
its then editor, Andy Coulson. This record payout and
verdict against the man who was about to walk through
the front door of Number 10 were not judged to be
newsworthy. But, and we've just heard this from the
General Secretary of the NUJ, a culture of bullying in
any organisation is important and it may be highly
pertinent to ask whether journalists on the paper felt
intimidated and did things they knew to be wrong.
I respectfully suggest the Inquiry might like to ask
whether this was the case within the News of the World
and, if so, what safeguards can be built into news
organisations in future so that journalists already
working under ever-increasing pressure and in the
context of financial insecurity can exercise some moral
choices about the things they can't square with their
The answers to these questions about the response to
the phone hacking revisions are vital ones for anyone
who cares about the health of a democracy.
Did people both internally and externally feel
a fear of News International? Was its influence across
many aspects of British political and cultural life
simply too dominant? How did News Corp leverage its
commercial, political, journalistic and as we now know
outsourced criminal muscle?
The second issue relates to internal practices, and
particularly those which relate to an honest recognition
of what journalism is. In my statement to your Inquiry
on press freedom last month, I quoted David Broder, the
former Washington Post commentator, and his definition
of what a newspaper was. He called it:
"... a partial, hasty, incomplete, inevitably
somewhat flawed and inaccurate rendering of some of the
things we heard about in the past 24 hours ... distorted
despite our best efforts to eliminate gross bias by the
very process of compression that makes it possible for
you ... to read it in about an hour."
That passage and exposure to the American tradition
of public editors or ombudsmen inspired me to appoint
Britain's first readers' editor in 1997 and we note with
encouragement that since the start of your Inquiry, two
other newspaper groups have decided to publish regular
corrections and clarifications on page 2.
We would be very happy to share with you our
thinking and experience based on nearly 15 years of
running a truly independent column, and the value that
such columns bring to the newspaper and for readers.
This very local, responsive form of regulation, what
counsel to this Inquiry termed, I believe, internal
regulation, seems to us the cornerstone of responsible
journalism and has a material impact on culture,
practice and ethics.
Thirdly, we've already suggested that the industry
might profitably learn from the thinking of others who
face similar challenges in relation to ethical dilemmas.
You're aware of and counsel has noted the questions
which former GCHQ director Sir David Omand suggested any
intelligence operation should consider in relation to
intrusions into privacy: the harm test, the public good
test, the proportionality test, the need for due
authorisation and the bar against fishing expeditions.
Should you find it helpful, we would like to explore
this further. In particular, ways of demonstrating that
proper questioning and authorisation had taken place
before publication. It seems to us that this is an
extension of the sort of pre-publication consideration
and precautions which many of our reporters already use
under the so-called Reynolds doctrine in defamation.
A mention of defamation leads us respectfully to
suggest, fourthly, that you consider the extent to which
your own thinking in respect of regulation could be
dovetailed with the current consultation on the
defamation bill before Parliament. I recognise that
both you and counsel have stated that this Inquiry does
not intend to look at the defamation bill. However, our
defamation laws, widely considered to be slow, costly
and illiberal, are often used as a sledgehammer to crack
a nut which could equally well be solved by a properly
recognised system of mediation within a system of press
So if you're minded to entertain thoughts of radical
reform of the latter, it might be useful to canvass
views on how you could draw on an awful lot of recent
and creative thinking about our libel laws. Indeed,
your reference yesterday to mechanisms for dispute
resolution fair and cheap I believe are at the heart of
We could stick an M for mediation in PCC, maybe call
it the Press Standards and Mediation Commission. It
could then be a one-stop shop disputes resolution
service, so that people seldom had to go to law to
resolve their differences with newspapers. It would be
quick, responsive and cheap, and we could even make this
a carrot to tempt people into the fold of independent
regulation, ie newspapers that signed up to it would
have clear advantages over newspapers that didn't.
Fifthly, and on regulation more broadly, it will
come as no surprise to this Inquiry that we weren't
impressed by the way that the PCC handled phone hacking.
We said in November 2009 that it was misleading to call
the PCC a regulator and we note that the incoming
chairman, Lord Hunt, has gone further. It is absolutely
not a regulator, in his view.
So it could be argued that before we abolish
self-regulation, we should first try it.
No one has any quarrel with the job the PCC does in
mediating complaints. Many people think its code is
a good one, if a little too preoccupied with exposing
iniquity, and that its adjudications form a coherent
body of caselaw.
Against that, its governance looks opaque even to
people within the industry. Its rules on so-called
third party interventions are difficult to follow. If
it were not merely a complaints-driven system but a more
proactive regime which monitored, investigated and
encouraged cultural change, it might make systemic abuse
less likely to occur.
Its attitude towards privacy, including informal
pre-publication advice, is not at all clear and it's
a mystery as to why it launched an inquiry into
something that it was completely ill-equipped to
investigate. It was clearly lied to by the industry's
main player, yet appears to lack the powers or the will
to do anything about it.
So while we think there are useful things to build
on, we don't agree with those who think that everything
is currently broadly okay subject to a touch on the
A new regulator clearly has to have teeth, the power
to intervene and investigate meaningfully and to impose
I note that you have questioned the overly binary
debate of statutory versus self-regulation and we agree.
If statutory regulation implies some form of state
control or licensing of journalists, we would oppose it.
The crucial issues, it seems to us, are funding and
cost, the expertise/independence of those who run it and
serve on it, and that it regulates the whole market,
subject, of course, to the definitional difficulties of
describing what the market is or will be.
If statute can help make independent self-regulation
work well, then we would welcome suggested use of
statute to be scrutinised properly against concerns of
press freedom. For example, there may be carrots and
sticks that once recognised in the law or by the courts
solve several of the challenges you have already spoken
of in making non-statutory regulation work.
As discussed above, a PCC successor might offer
a mediation and arbitration service covering libel. It
could also deal with privacy. Central to both would be
a workable and agreed definition of the public interest
that not only do we as an industry agree with but should
also be prepared to argue in any forum.
Privacy is more difficult than libel in two senses.
It challenges the industry with the degree to which they
would tolerate prior restraint, and however little we
like the developing jurisprudence of the courts, there
is a problem that the further a regulator diverges from
the remedies available in law, the less likely it is
that claimants will use the services of the regulator.
Finally, and this speaks to all the modules, it
seems to us that there's a pressing need to examine the
issue of plurality and competition framework. Only last
month the tiny family-owned Kent Messenger Group was
prevented from taking over seven Northcliffe titles
because of the distortion of the newspaper market in
East Kent. Yet, until the post-Milly Dowler
intervention of MPs in July 2011, there appeared to be
nothing anyone could do to prevent News Corp from
effectively doubling its already remarkable dominance of
British media by acquiring the 61 per cent of BSkyB it
didn't already own.
If you come to the view that there was a genuine
fear of News International in public life, partly, but
only partly, on account of what private investigators
and criminal figures were employed by them to dig up,
then it's important, we submit, to recommend
a regulatory and legal framework which prevents media
companies in this country from acquiring too much
All journalists worry about any form of interference
in freedom of expression and you will have picked up on
a widespread anxiety about whether new forms of
regulation might inhibit us. From one point of view,
no one currently gains very much from regulation. You
might think the Financial Times doesn't really need the
PCC to make sure that it stays on the ethical straight
and narrow. The Northern and Express titles showed just
what they thought of constant criticism by the PCC by
walking out of it. Some regional and magazine editors
see little gain and much expense.
The PCC, for all its failings, was born from the
view that there was an overriding imperative to agree
a common professional and ethical code to which we would
not merely pay lip service but which would actually
inform everything we did. Only by acting together could
we repel the people who really were looking for any
excuse to tie our hands, and so we lashed ourselves
together in order to be stronger.
I think the public has also gained from this, and in
the aftermath of an episode in which thousand of members
of the public were illegally targeted by journalists,
it's important that we keep them in front of mind at all
The coming period of examination of the press will
doubtless be an uncomfortable one in some respects, but
we're sure that you will have in your mind the good
things that journalists do which more than ever need
protection, as well as the work of the 99 per cent of
British journalists who wouldn't have a clue how to hack
a phone, who don't go to work to snoop into the private
lives of others. And it's our hope that with creative
thinking you and your team can find ways of bolstering
all the good that flows from the best journalism while
cutting out the worst.
LORD JUSTICE LEVESON
Mr Rusbridger, that sounds like
a target in itself.
I'm conscious and have been conscious from the
various presentations that you've made, both the
seminars and the speeches you've given, that this is
a topic which has obviously exercised your mind for some
considerable time, and therefore I would very much
welcome not merely a restatement of the problems, which
I am starting to get to grip with, but also some help
with solutions that work for everybody. Nobody need
convince me that the vast majority, the overwhelming
majority of journalism practised in this country is very
much in the public interest and has the public interest
very much at its heart. But I think you're right, as
indeed everybody else has realised, that there is
a distance now to go which we can't ignore, and which we
ignore at our peril.
So let me just ask you a few questions about what
you've said, and if you can't answer them now, that's
fair enough, I just want them to be thought about.
When Mr Jay opened the case, he spoke about these
two narratives, the positive and the negative, and I've
heard not surprising concern expressed by some of the
core participants about anonymous evidence and
I understand that, and from a background of the criminal
law where anonymity has caused enormous problems,
I recognise the issues that are thrown up, but how am
I going to get to the bottom of the culture which is
hinted at, which is spoken of this morning, unless
people are prepared to say it? And how am I going to
help those that are concerned about the potential impact
that that will have upon them, and their livelihood,
which is a not at all ignoble concern, to try and expose
what needs to be exposed so that we can get an idea of
the corners of the problem?
So that's the first series of questions that I have.
The second is the slightly different picture that
some of the media representatives portray to the picture
presented by others. It's encapsulated in the concern
that was expressed at a very early stage about lack of
tabloid experience, and by tabloid I mean red top rather
than including in that description the size of the paper
upon which the newspaper is printed. That's not what
I'm talking about, as everybody understands.
Nobody has suggested that the ethics of those that
are mass market newspapers should be different to those
which are rather more targeted, and that seems to me to
be right, but there is no doubt, it seems to me, that
concepts of privacy about which you spoke are
differently perceived by different titles, and I need to
know how to address that. I need to know how I should
be thinking about the concept of privacy, and to what
extent obviously those who have been affected by issues
of privacy will have extremely strong views, and where
the balance is. I think that's a struggle.
You mention what safeguards can be built into news
organisations so that journalists can exercise moral
choices. That echoed something that Ms Stanistreet said
about the conscience clause, but is it appropriate for
me to be requiring that? Is that a way forward? I'm
very concerned about the extent to which the law ought
to be prescribing any of these things, not least because
that itself impacts on the freedom that I have no doubt
is critical to the exercise of journalistic
Then you talk about oversight and governance, which
I've already mentioned. If there is to be a public
benefit test as I believe there should be, then it
obviously has to be subjective if the journalist and the
editor has to believe it, but secondly, is there place
for some objective criteria and a demonstration of
oversight that establishes that it has been thought
It will come particularly to the fore where stories
don't actually prove themselves. You could take a story
such as the cricketing revelations recently and say,
well, that demonstrates, and indeed it does demonstrate,
the power of investigative journalism, where there was
a real public interest. But one has to be able to make
that decision before one knows the result of the test.
In other words, you have to have some mechanism to
decide this line which is going to involve blagging and
steps which might otherwise be a legitimate subject of
complaints, is overridden by public interest, even if in
the end you don't get the lollipop because nothing comes
of it, and yet it then comes out. That's another issue
and that's an issue which has to be tested at various
The problem about pre-publication authorisation,
just to raise a concept -- and I'm afraid you are now
getting a whole series of questions which is really, of
course, addressed to everybody and come out of
everything that everybody's said, but because you're the
last core participant, you're going to get it from me --
is how one is going to test some sort of authority.
I mean, I know there's been a very real concern, and
indeed Mr Mosley has pursued through to Europe issues of
notification, but on what basis would that decision be
made? Would it be made on the basis of the story that
the press wants to put in the public domain or would it
require some detailed examination of the facts to see
whether that story is justified?
I'm not answering these questions, I'm merely asking
Let me just carry on to the next point.
I think there is a great deal of scope in finding
some mechanism that allows for the resolution of
disputes between members of the public and the press
short of the courts, because it's become so expensive or
so dependent upon conditional fees that it isn't
available to many. I would like to investigate the idea
of having some sort of service that does that, that ties
into the law and that runs parallel, because I'm not
going to be one that cuts anybody out from coming to
law, but I do feel that everybody could benefit from
some mechanism -- at least I think I feel; I'm only
beginning and none of these views are formed, they're
merely thoughts -- as to how one can set something up
that is for the benefit of everybody.
You mention a carrot and a stick, but how am I going
to persuade those that don't even subscribe to the PCC
that it's a sensible approach? And how am I going to
involve that other great media outlet now, the Internet,
to buy in?
You pick up the point about teeth, and my concern
about the binary issue, and I'm sure that the
approach -- no, I can't say I'm sure. I feel it's
likely that the approach is going to require something
rather more nuanced than one or the other, but how can
that work in a way that doesn't -- and if I say this
once a day, I hope people will believe me -- doesn't
impact on the freedom of the press and the freedom of
expression, both of which I believe are absolutely
fundamental to our society, and I will carry on saying
it because that is absolutely my view.
Then you mentioned the competition. The word
plurality came into my terms of reference quite late in
the day and raised monumental problems, but how is one
to do that? And even if we are where we are, how is one
to take that forward in a way that respects independence
and takes the decision-making into an area that is
cognisant of those problems?
So they're just a stream of consciousness, really,
based upon things that you've said but also that I've
heard this morning and heard over the last few days.
I don't ask you to answer this examination paper
immediately, but if there's anything that you do want to
add, because some of those I might have asked as
questions while you were speaking, you're very welcome
to do so. Otherwise, everybody can take on board what
I have said and think about the ways in which we can
address them in the weeks that are to come.
I want this Inquiry to mean something. I am, and
I repeat, very concerned that it should not simply form
a footnote in some professor of journalism's analysis of
the history of the 21st century while it gathers dust.
This is an opportunity for your industry, your
profession, and I'm very keen that it's used as
profitably by everybody so that the vast expense that
all are incurring is not wasted.
That was a speech I didn't expect to make and wasn't
planning, but I hope that it's of value.
If there's anything you want to add to what I've
said, I would be very grateful.
Thank you for responding so creatively to
what I said, and if I just give you some brief reactions
to what you've said to me and then we can consult and
respond more fully.
On the point of anonymous evidence, I think that is
clearly a difficult one. The reason that Nick Davies
and the New York Times and later Panorama and
Dispatches, ie journalists were able to get at this
story in a way that the police and the PCC weren't was
because they spoke to journalists off the record. So
when the New York Times turned up in town, we said to
them, "If you find and speak to enough people on the
News of the World, they will tell you the same thing
that they told Nick Davies", which was that this stuff
was going on, that it was known about, it was rife and
it was ingrained in the paper.
The New York Times managed to get two journalists to
speak on the record, and the third police inquiry
immediately announced they would interview these
witnesses as suspects under caution, and of course that
So there was a contrast between the people who were
trying to get public evidence and didn't get to the
truth, and the people who took off the record evidence
and did get to the truth.
LORD JUSTICE LEVESON
That makes an assumption, actually,
but I take the point.
LORD JUSTICE LEVESON
No, I understand the point.
I think it's inevitable, and I hear what the
General Secretary of the NUJ said about the fear of
people -- I mean, there are two factors that are going
to be at the back of people's mind. One is the
retribution factor, which Michelle Stanistreet talked
about, which is you're going to be unemployable if you
say bad things about the industry in front of this
committee, and the other obviously is that if people
were frank the police are going to come along and arrest
So those are two difficult factors which you're
going to have to think about and I know you've given
a lot of thought to already. And we can think further.
On the tabloids versus the broadsheets and privacy,
it's true that there is a divide between different types
of newspapers, and broadly and crudely, the so-called
broadsheets have been more interested in the law of
libel and the development of the so-called Reynolds
principles, and the tabloids are broadly less interested
in libel, use that less and are more threatened by
When asked by the House of Commons and the joint
committee looking into privacy, my answer has always
been that we haven't yet been -- we get the injunctions
that everyone else gets about privacy, but no one has
yet tried to stop the Guardian from writing about
anything on the basis of privacy, and when I gave
evidence with John Witherow, the editor of the
Sunday Times, before the joint committee the other day,
he said more or less the same. He said he thought the
balance at the moment was about right.
But there are different business models involved and
I think the only way it's going to work is for the
industry to come together around a public interest
defence that they agree to and are prepared to defend.
It's been quite striking to me that in the rash of
privacy injunction cases in the courts earlier this
year, if you do an analysis of them, and there's a handy
analysis sitting on the Guardian law site, in most cases
the newspapers don't argue that it was in the public
interest as defined by the code, so I think we have to
have a public interest defence that we believe in and
are prepared to argue and if we're not prepared to argue
then that tells you something --
LORD JUSTICE LEVESON
And it must recognise -- I'm sorry,
I'm now interrupting, but it must recognise, mustn't it,
that different newspapers have different audiences who
are interested in different things?
That is true, and I take on board all the
things that my colleagues say about the fact that the
commercial model of some newspapers is built on an
entirely different kind of content, but it's a slippery
road if you go down that argument too much because it
ends up at the News of the World. Unless you have
universal principles around which we agree, and this is
the business of how we lash ourselves together in
industry, about things in which -- where we come from
different starting points, it has to be around a common
idea of what the public good and public interest is.
And we must mean that. Including arguing it in court.
On the conscience clause, again off the top of my
head, I would have thought there would be things that
would help this tribunal in the provisions of
whistle-blowing, so lots of companies do have
whistle-blowing clauses built into their governance,
LORD JUSTICE LEVESON
There's now legislation for it.
Quite. So there must be something there,
but I'm not a lawyer and that's something on which
I shall take further legal advice.
On the public benefit test, I think it is similar to
the Reynolds test, which, as broadsheets, we're quite
used to dealing with now, so the best investigative
reporters on the Guardian know that they have to
answer -- they may be asked these questions if they want
to avail themselves of the Reynolds defence. It's about
who the source is, what's the motive of the source,
what's the quality of the information, have you put the
information to the people you're writing about in
advance, have you given them time to respond, have you
included their response?
You're familiar with the Nicholls test. Although
I think as an industry we would say that Reynolds didn't
work particularly well when it was tested in the courts
until the Jameel judgment in the House of Lords,
nevertheless at the Guardian we have been able to
publish a lot of stories that we wouldn't have been able
to publish in the past because the lawyers on the other
side kind of know the process that's been gone through
and they recognise that they're not going to be able to
get a case up and running.
So I think that Reynolds is working quite well, and
you can take some of that into this privacy thing and
that's where the Omand rules are quite interesting,
because if you can say yes, we did consider the harm,
the good, the proportionality, it was authorised, and
no, this wasn't a fishing expedition, which goes to your
point about things that may have public interest at the
end that didn't look at though they would at the
beginning or vice versa --
LORD JUSTICE LEVESON
-- if you can show your working -- now,
I know some of my colleagues and the legal team would be
anxious if that became the kind of official audit, but
nevertheless I think it's inevitable that any form of
regulation is going to say: who knew about this in
advance? What questions were asked? Were any notes
taken? And I think if newsrooms in the way that they
handle Reynolds began to handle these issues in the same
LORD JUSTICE LEVESON
I'm not suggesting something that
PricewaterhouseCoopers could come and read. I'm
actually suggesting something rather less sophisticated
than that, to demonstrate that there is a system.
LORD JUSTICE LEVESON
That actually these things were
thought about and not just after the event, but in
Yes, and I think these are reasonable
questions for a regulator to ask.
LORD JUSTICE LEVESON
I seem to be doing it all at the
moment, but at least thinking about it.
Notification I think is complex because it meshes in
with lots of other different bits of media law which
engage prior restraint. So if you have a confidential
document which perhaps you shouldn't have, or you want
to put it to the subject in advance for libel reasons,
you run the risk that they will get an injunction under
confidence and the story will never appear.
LORD JUSTICE LEVESON
I understand the problem, and that's
an issue that has to be addressed, and I have some very,
very quarter-formed ideas, but I'm keen to get ideas
from everybody, actually, to see ways in which this
could work. I mean, we're only Day 3, and we're going
to get to Day 100 and something, I would have thought,
so there's plenty of time, but the purpose of the
openings is just to put all these things out there.
Yes. Is this helpful for me to just
LORD JUSTICE LEVESON
Carry on, yes.
Disputes resolution and the carrots and
sticks. I mean, what we've been thinking -- obviously
under Article 6, anybody can go to law who wants to.
I think that a mediator in a pretty cost-free way could,
at an early stage, look at meaning, could explore the
degree to which the facts contested could decide on the
facts, could deal with the prominence of an apology and
the wording of an apology. All these things that can
take months at huge expense to do through the courts
could be done by a mediator.
If a mediator kept notes of all that, so there was
a record of that discussion, so that if the mediation
fell apart you could then show that to a judge, if it
went on to trial, and the judge could then recognise
whether the newspaper had made a genuine attempt to
reach resolution, that could be reflected in the costs
or the damages or it could be regarded as a complete
defence. Ie if a newspaper had early on put their hands
up, confessed their error and said, "We will correct
this prominently and pay the damages" and that had been
rejected by the claimant, as has happened to us on
occasion, I think the judge could then say, "Actually,
I think that is a defence". So it's something like the
offer of amends or a Part 36 offer.
LORD JUSTICE LEVESON
You'd have to have the mediator to
have the ability to assess damages up to perhaps
a certain level.
I don't see why not, yes. And I'm not
a lawyer, so the degree to which the primary legislation
would have to be involved in order to embed that --
which sort of takes us onto the next issue because this
is the statutory versus non-statutory bit. The
statutory bit that says in setting up this independent
regulator we need to tweak bits of law in order to give
force to these things, in order to dovetail aspects of
law, we don't have a problem with, as long as the
regulation itself doesn't sniff of statutory regulation.
LORD JUSTICE LEVESON
Yes, well, I think in the speech the
Lord Chief Justice made, he observed models whereby the
government isn't appointing anybody, but is setting out
regimes whereby independent people are appointed, who
then appoint, and one of the examples he gave was the
Judicial Appointments Commission.
LORD JUSTICE LEVESON
Anyway, these are all things for the
future. Mr Rusbridger, thank you very much indeed.
That's probably a convenient moment to have a break so
that the fingers of the shorthand writer can cool down.
We'll come back at about 11.30. Thank you.
(A short break)
LORD JUSTICE LEVESON
Before Mr Sherborne starts, two
First of all, although I addressed a series of
questions to Mr Rusbridger, they should be treated as
questions to everybody. I'm sure they will be.
Right, Mr Sherborne, I haven't had anything in
writing at all from you. I have from everybody else.
Should I have got?
Sir, you will get.
LORD JUSTICE LEVESON
It will cover topics which, although touched
upon in the oral submissions I'm about to make to you,
are largely or fleshed out, I would say, in the written
submissions. Part of the purpose of the oral
submissions are of course to open the evidence that
you'll hear from my clients.
LORD JUSTICE LEVESON
But I will provide the Inquiry with written
submissions before the evidence starts on Monday next
week. It concerns, as you'll appreciate, legal issues
as opposed to evidential ones.
LORD JUSTICE LEVESON
Opening submissions by MR SHERBORNE
Sir, along with Mr Crossley and his team at
Collyer Bristow I represent the core participant
victims, all 51 of them. I sat and listened, as you did
and everyone else did yesterday, to the representatives
of the two largest press organisations in this country.
We are here, as you said, not just because of the
shameful revelations which have come out of the hacking
scandal, but also because there has been a serious
breakdown of trust in the important relationship between
the press and the public, and it is the general public
whom my clients represent in one very real sense.
It is really this breakdown of trust that we are
here to deal with. That is the terms, of course, of
module one of part 1 of this Inquiry. But before
I launch into my speech, can I say this? It hardly
fills my clients or the public, I suspect, with great
confidence that, having listened to the two largest
newspaper groups in this country in the face of the
well-documented problems, in the face of the experiences
which my clients' evidence highlights, and in terms of
what this says about the ethics, culture and practices
of the press, or at least a certain section of the
press, that rather than suggest some concrete solutions
to rectify them, or even recognise that there is
anything really wrong, other than the unfortunate
hacking incident, as they see it, they both urge you
that a freer press is the answer.
We say that this is symptomatic of a level of
complacency amongst the British press, or a part of it.
Such editors or newspapers, as was clear from the
seminars of the Inquiry last month, are firm members of
the "see no, speak no, hear no evil" brigade. It is
a theme to which I will return in due course.
Before I continue, can I just explain one term,
which may well recur throughout my submissions. I've
already referred to a certain section of the press. Let
me not be Delphic. After all, it's not my strong point.
By that I am referring to the tabloid or popular end of
the press, and in that I do include the Associated
Whilst I accept, indeed I would urge the Inquiry,
insofar as it seeks to set standards for journalistic
activity, that these are standards which must apply
across the board, the experience of my clients, the
victims -- and I am here to represent them, not to be
impartial -- is primarily and largely at the hands of
that certain section of the press, as I will call it,
a big section nevertheless, but it is still a particular
Whilst I'm also sure there are many people who have
complaints against the broadsheet newspapers, the main
elements of what the core participant victims complain
about here in terms of intrusion into their privacy,
principally, are features very much of the tabloid or
popular newspaper market, something which Mr Rusbridger
touched on only moments ago.
So far, so good. Let me begin then.
There are currently 13 or so journalists from the
News of the World as well as a journalist from its
sister newspaper, the Sun, who have been arrested and
are waiting further questioning. However, it is the
whole of the press, and in particular the tabloid
section of it, which we say stands in the dock, at least
metaphorically so, and certainly in the court of public
opinion, if not here.
The nature of the charge, at least against some of
the press, concerns their culture, practices and ethics,
but the indictment could as easily read as follows:
illegally accessing people's private voicemails, bribing
employees into divulging personal information, blagging
sensitive details through deception and trickery,
blackmailing vulnerable or opportunistic individuals
into breaking confidences about well-known people, the
blatant intrusion into the grief of victims of crime,
the vilification of ordinary members of the public
unwittingly caught up in such events, the hounding of
various well-known people, their families and friends,
purely because this sells newspapers, and finally, the
bullying of those who, in seeking to question these
practices, are therefore merely exercising the very same
freedom of speech behind which much of this behaviour is
sought to be shielded or excused by the press.
Quite an impressive charge sheet, you might think.
No wonder it may take this Inquiry some time to conduct
the investigation. It may take me a little time today,
as well, to outline the true, unvarnished extent of the
tawdry journalistic trade that we now have in this
country, particularly in the publication of personal
information about people's private lives, information
that in some cases has been rightly denied to the press,
or anyone else, as a matter of law.
The real code of practice, we say, seems to be for
such journalists, in publishing stories about the
private lives of people in the public eye, that what you
can get away with you buy, regardless of whether it is
illegal, unlawful or just plain wrong. What you can't
buy you procure, often through deception and lies. What
you can't procure you just plain steal. And what you
want to publish but you can neither verify nor
necessarily prove, you simply make up, because it sounds
right or it sells newspapers.
On that last point, don't just take my word for it,
as they say. We were all treated to a classic example
of this when a former tabloid editor, Mr MacKenzie,
spoke at one of the seminars. A man who boasted that in
his considerable experiences he only checked his sources
once. An editor whose view was: if it sounds right, it
probably is right, and so you lob it in anyway. Nothing
Before one says, as another former editor and now PR
said at the seminar, that this type of journalism has
been firmly consigned to the history books of
Fleet Street, you should remember that Mr MacKenzie is
still deeply involved in this industry and is currently
a prize columnist employed by the Daily Mail.
Sir, as you said at the outset, it is not the
function of this Inquiry to offer applause or to make
specific criticisms of any one newspaper or another. My
role here is not to give applause to anyone. My role on
behalf of those who had suffered at the hands of the
press over a number of years means that I am here to
highlight the wrongs, systemic, flagrant and deeply
entrenched as I say they are.
As I've said, I represent the victims and this is
really their story. My submissions will be laced
throughout with the accounts that they give.
While there are 51 core participant victims, there
are in fact many, many more people with similar stories,
similar experiences, similar narratives of how their
lives have been ruined or adversely impacted by the kind
of culture, ethics and practices which you will hear
evidence about from a selection of individual core
participant victims. These victims can explain their
feelings and their experiences far more eloquently and
far more vividly than I can paraphrase.
One may be forgiven if one attended or heard the
seminars last month from thinking that it is the press
who are the victims here. Victims of draconian libel
laws, victims of greedy lawyers on no win no fee
agreements, victims of unaccountable judges who
arbitrarily impose gagging orders on them preventing
them telling us, the public, about what the rich and
famous get up to in private.
This is no accident. The press is a powerful body.
They have a common interest and a self-serving agenda.
Why wouldn't they, after all? This is about survival,
and they have lobbied hard to try and push their agenda
through the pages of their own highly influential
newspapers, to influence politicians with the sole
objective that there should be less rather than more
restriction or regulation, and that if this was so,
journalism would be even better.
If you need proof positive that it would not, then
the setting up of this Inquiry provides it.
However, the press have a very powerful voice and
should not, as Mr Jay said, be allowed to drown out the
voices of the victims. As the embodiment of that voice,
a lone voice, of course, amongst the serried ranks of
newspapers and lawyers on either side of me, I can say
that I don't intend to be drowned out, but I will show
that unfortunately, sir, as you feared, a number of
individuals have already been vilified for agreeing to
share their experiences with this Inquiry, and I will
return to this later.
There is, of course, a real difference between
freedom of speech and freedom of the press. The two
should not necessarily be seen as the same. While the
first is an understandable and fundamental principle, we
can see where an entirely free press, as some would
suggest, has got us, and before I leave the narrative
which the press wish to espouse, it is worth remembering
what another former editor, Ms Rebekah Brooks, told the
House of Commons Select Committee in 2003:
"Self-regulation under the guidance of the PCC", she
claimed, "has changed the culture in Fleet Street and in
every single newsroom in the land."
I presume by that she meant it in a positive way.
Well, eight years on, it is for you to decide, sir,
what you think about that as a statement of fact.
However, it's hard to resist the temptation to comment
that if this is the press's own assessment of
self-regulation, I could just as well sit down now.
It is equally tempting to point out that it was
during the same evidence that Ms Brooks, the editor then
of the Sun, admitted paying money to police officers.
Mr Coulson, then editor of the News of the World,
sitting to her side, stepped in to reassure the
committee not only that this only happened in cases of
public interest, but to make the now spectacular
ill-judged assertion that they at News International
always operated within the law.
What damage, I've heard it asked, admittedly by
those whose self-interest requires them do so, what
damage has really been suffered by these practices?
We'll hear from a number of people who provide, as I
say, a better answer than I can. It is, as I said,
merely a selection. There are not enough details, not
enough room in court for everyone. It is a sample, sir,
as you call it of the bigger picture, a glimpse of the
scale of the problem, and it comes mostly from those who
have hit the headlines, quite literally, but for every
one of them, it should be noted that there are many,
However, before I outline this bigger picture, it is
important to remember at all times that however loud the
voice of the press may be raised, whether in this room
or, more likely, outside, through the filter of their
very own newspapers, there is a reason why we are all
here and it isn't because the press got it right and it
isn't because there needs to be greater latitude and
freedom given to them.
So let's start with the breaking point which caused
this Inquiry to be set up.
In the beginning was the word, and the word was
hacking. A term whose significance until relatively
recently one could have been forgiven for not really
appreciating. Forgiven if you were a member of the
public, that is, since the arrest and conviction of
Messrs Mulcaire and Goodman in 2006 was reported but
hardly with the level of impact or weight that everyone
now realises it truly deserved.
Nevertheless, whilst its significance may not have
heavily impacted upon the public consciousness at the
time, it was something of which the press or certain
sections of it were well aware.
They chose to ignore it publicly. That was until
Nick Davies wrote about it so famously in 2009. Yes, it
took a journalist to do it, which is important to note.
An old-fashioned investigative journalist, if Mr Davies
doesn't mind me calling him such, and no one here is
saying that they should be rendered redundant.
Of course, it was never going to be the tabloid
press themselves who confessed or self-regulated on
this. It wasn't the police or politicians who reported
it either, both of whom were likely aware. Perhaps
Harold Pinter was right when he said, "Most of the press
is in league with the government or the status quo". No
doubt the accuracy of that statement is something, sir,
which you will consider in the later modules of part 1
of this Inquiry.
So now to begin with the narratives of those who
will give evidence before you.
On 21 March 2002, a 13-year-old girl was abducted
and murdered on her way home from school. Her name was
Milly. Between March and September 2002, she was still
believed missing, not just by the public, but most
importantly, by her family. Five days later, after her
disappearance, a mystery caller left a voicemail message
on Milly's phone, apparently inviting her to a job
interview in the Midlands. The call was a hoax.
A particularly cruel and insensitive hoax.
It was such an awful story that it made the front
pages. A certain now defunct newspaper put it in their
first edition: "Missing Milly hoax outrage". Whilst the
woman who made that call and thereby caused distress to
poor Milly's family was convicted and imprisoned for
five months, what we now know is that another outrage,
another act of cruelty and insensitivity, was the one
which was nowhere mentioned in the News of the World,
and that was the fact that Mr Mulcaire, acting in the
course of his work for the newspaper, had deliberately
accessed and listened to the missing 13-year-old's
voicemail, and worse still, he had even deleted some to
ensure there was room for waiting voicemails to come
through to her otherwise full mailbox.
We don't know who within the News of the World
authorised this and at what level. We can speculate,
but that's not the purpose of part 1 of this Inquiry.
The individual names of those involved in such
activities are to be anonymised, in a twist of irony
that, whilst it is understandable to protect the
criminal prosecution, will not be lost on those whose
anonymity has been shattered in the past by tabloid
Of course, the hacking of Milly's phone did not come
out until July of this year, her parents having been
told just before the criminal trial started in April.
And it was this revelation which finally provoked the
government into setting up this Inquiry. Mr and
Mrs Dowler will tell you in their own words what it felt
like in those moments when Sally, her mother, finally
got through to her daughter's voicemail after persistent
attempts had failed because the box was full, and the
euphoria which this belief created, false as it was,
Perhaps there are no words which can adequately
describe how despicable this act was, but the Dowler
story is just one of those you will hear. It comes
first, for obvious reasons, but it is not just a story
about hacking, in the same way as this Inquiry is an
investigation into the much broader and bigger picture.
The Dowlers were subjected to terrible intrusion by
the press, intrusion at a time of immense grief, and as
I will describe, they are by no means alone in this
experience. For example, they will explain how in the
weeks following her disappearance, and when the
reporting frenzy had calmed down, the couple decided to
repeat the very walk which Milly had done the day she
was abducted. This was no formal reconstruction done
with the police. It was not for publicity. It was,
rather, a private act, a very private moment, something
the couple had decided to do between themselves to try
to come to terms with their teenage daughter's
disappearance. A way of coming to terms with their
grief in private. Or so they thought.
But their moment of grief was obviously a photo
opportunity too good to resist. Somehow the press found
out that they were undertaking that last walk on that
particular day and at that particular time. Their
voicemails, they suspect, theirs of course, not Milly's
this time, were being listened to.
The News of the World published an article on that
day under the headline "The longest walk", complete with
pictures of the distressed couple and a side bar which
read, without even a hint of introspection:
"Face etched with pain, missing Milly's mum softly
touches a poster of her girl as she and hubby retrace
her last footsteps."
And alongside the picture was a caption which read
"Mile of grief. The Dowlers follow Milly's
footsteps from Walton station and below mum Sally can't
help but touch the poster of her daughter."
First stolen voicemail messages. Why not then steal
these precious moments too? Ethically, what's the
Both Sally and Bob Dowler will give evidence on
Monday. They will be the first of my clients to do so.
It is fair to say on any view that with the drip
feed of revelation after revelation in the hacking
story, as each new fact has come out, each one more
outrageous perhaps than the last, it has got to the
point where it is difficult perhaps still to be shocked.
And whilst I suspect there are those who vehemently
deplore the hacking of Milly's phone, or the phone of
Shaun Russell, Josie Russell's father, or the victims of
the 7/7 bombing, there are some who seem to have less
sympathy for the high profile figures whose phoned also
were illegally accessed.
The basis for this I presume, certainly if the
tabloid press's view of the ordinary reasonable reader
is right, is that so-called whingeing celebrities
deserve to have their private messages listened to.
After all, they want the public to watch their films or
buy their records or to pay to see them play football.
However, I trust that the majority of the population
accept that high profile or not, there is no excuse for
this kind of what is called news-gathering.
Lest it should be overlooked, while Mr Davies was
the man who was prepared to write about the dark arts,
it was individuals like Sienna Miller who were prepared
to take on News International, unlike some of those in
government or authority. And it is Sienna Miller and
others' actions which forced the hacking scandal to be
taken seriously by the police. Without people like her
and other so-called celebrities, who knows when or even
if the Dowlers would ever have found out about the
hacking of their daughter's voicemails? Who knows
whether this Inquiry would have been launched? After
all, the Surrey Police had known about the hacking of
Milly's phone for nine years and the Metropolitan Police
probably for several years as well.
So before we condemn the wonderful stereotypical
rich and famous, as they are termed, and suggest that
the law is not just for them, in fact no one, not even
the rich and famous, wants that, it is important to
remember that it is in fact a sad but true reflection of
our system of justice and in particular the lack of
state funding in this area that it is only because of
those with sufficient resources and the access to
lawyers, those terribly grasping claimant lawyers we all
hear about, or the bravery of these people to run the
gauntlet of the press, that the law, particularly the
law of privacy, has now been developed to protect
everyone, wealthy and non-wealthy alike.
Now, with the demise of conditional fee agreements,
giving access to justice for those of limited means such
as the Dowlers and others you will hear about, the
situation is only going to be more polarised, but of
course that doesn't make for good print. It's an
inconvenient truth for the press, a press largely, but
not entirely, hellbent on self-interest and
self-preservation, or to put it another way, continuing
As I mentioned at the outset, one of the features of
the phone hacking scandal is that victims were not
always well-known people or those caught up in
headline-dominating incidents. As often as not, it
seems, they were people whose crime was simply working
for well-known people, people who were involved with or
were simply friends of those in the public eye, and
therefore who might have access to material that could
provide good, but let's face it, relatively cheap copy.
Ordinary people, so to speak, who were caught in the
cross-hairs, often with very tragic consequences. The
collateral damage in a war where every means, fair or
foul, has been employed. People who have only been able
to bring proceedings against News Group Newspapers
because they have the benefit of lawyers who will act on
a no win, no fee agreement. People, for example, like
Mary-Ellen Field, a distinguished professional, an
accountant by training, who was employed because of how
good she was at her job by someone very much in the
public eye, Elle Macpherson.
Ms Field will give evidence to you, sir, about how
she became the well-known model's business adviser and
confidante, but how when damaging details about
Ms Macpherson's private life started appearing in the
press, she was blamed by her employer.
This is no ordinary story though. The circumstances
in which Ms Field was packed off to a clinic in America
because her employer believed that her refusal to accept
that she was responsible was plainly a denial borne out
of the strain of caring for her disabled son and
a problem with alcohol. She will explain how she
reluctantly agreed, in order to save her job, to travel
to this clinic in America, and then, when the clinic
sent her back because there was no such problem with
her, she was in any event sacked by her employer. These
are matters which she will graphically describe.
Of course, we all know now that those stories in the
press were actually the product not of someone leaking
to the newspapers but rather the unlawful interception
of Ms Field's voicemails and her employer's voicemails,
too. Indeed, the unlawful interception of
Ms Macpherson's phone was one of the counts on
Mr Mulcaire's indictment.
So for those who question, as some outside this room
still do, why all the fuss about hacking, maybe
Mary-Ellen Field provides an example.
Ms Field is by no means the only such person who
suffered such a fate. Others have different but equally
disturbing stories. The Inquiry will hear from someone
who is described by the letters HJK. There is a reason
for that. The association of HJK with someone
well-known is a matter of great sensitivity. HJK is not
well-known, though. I say that before anyone outside
this Inquiry attempts a jigsaw identification.
HJK's phone was hacked by the News of the World, as
the mobile phone company confirmed in a telephone call
to HJK out of the blue in the late summer of 2006. This
was several months after HJK had been doorstepped by
a journalist claiming to be from another newspaper group
wanting to publish an expose supposedly about HJK's
embryonic relationship with this well-known individual.
The connection between the News of the World and this
other newspaper group is not clear, but it is hard to
think of any other reason why HJK's phone was hacked or
this nascent relationship came to light.
The effect on HJK was profound. The story about the
quintessentially private relationship almost hit the
headlines, but was displaced by another story which,
thankfully, blew up the same day. It was a terrible
experience all round, and in a disturbing postscript,
HJK will explain how shortly after having been diagnosed
with a serious illness, a photographer who had been
following HJK jumped out and took a photograph, leading
to concerns on HJK's part that sensitive medical
information had been accessed by journalists. HJK would
not be the first to have suffered such a fate.
It is interesting that in what seems like on one
view a fairly brazen approach to their selection of
targets, the News of the World even targeted other
journalists, albeit broadsheet ones. You will hear from
Joan Smith, a journalist, broadcaster and novelist, but
interestingly also a campaigner for human rights. Her
claim to fame, as it were, and therefore the reason she
was targeted, was presumably the fact of her
relationship with the member of Parliament
Denis MacShane. Their relationship was entirely
legitimate and in the public domain, but perhaps it was
felt something might be gained from just listening in to
see what could be found.
Distressing enough, you might think, to be the
subject of such prying into your private life, but made
all the worse, she will say, by the fact that the
hacking of her phone and the fishing around for messages
came in the wake of the tragic loss of Mr MacShane's
Tom Rowland will give evidence next week too,
a Telegraph journalist for ten years but then
a contributor after that to other newspapers. He was
one of those victims who was informed by the police
about a number of calls that had been made to his mobile
phone from a handset within the News of the World
newsroom referred to as "the hub". 60 calls in his
particular case. It makes sense, you might think, that
journalists as well as Mr Mulcaire, the private
investigator, might have made calls themselves to these
voicemails. After all, they would have a much better
idea of what they were looking for, or perhaps better
understand what they heard.
The interest in Mr Rowland was apparently the
details he might have picked up from the contacts he had
made in the context of his own journalistic activities
with high profile or wealthy individuals relating to the
properties that they had purchased.
So the News of the World's list of victims includes
journalists too. The press are even prepared to turn on
their own, you might feel. But perhaps one of the
cruellest twists of the whole story is the fact that one
of the newspaper's most prominent targets had also been
one of its most prominent supporters. Sara Payne, the
mother of Sarah Payne, the murdered little girl.
Ms Payne spearheaded the campaign, as we all know,
to bring in the eponymously named anti-paedophile
legislation Sarah's Law, a campaign championed by none
other than the News of the World. It is ironic, to say
the least, that the final edition of the newspaper
contains a letter from Ms Payne in which she thanks them
for their support.
The revelation, which came only days later, that her
phone, the very phone she'd been given by the newspaper
as part of the campaign, was likely to have been hacked
by Mr Mulcaire, was a sickening postscript, perhaps
a new low amongst a wealth of lows, for a newspaper
whose former glory has been so fatally befouled by its
cultural dependency, it seems, on the dark arts, which
sadly give journalism and journalists a bad name.
Mr Jay mentioned on Monday when he outlined the
scale and extent of the hacking scandal that I would
mention the civil claims which are currently due to be
heard at the end of January, since I represent many of
the individuals whose actions are being tried then.
However, I hope I've already given you a flavour of
quite how broad the cross-section is of individuals
whose private messages were listened to or details were
blagged, both those well-known and those who were
targeted because the newspaper believed them to be
associated with well-known people. There are currently
over 50 claims which are being tried, but that in itself
is just a handful in comparison to the potential number
We have heard that Mr Mulcaire's notebook contained
the names of almost 6,000 potential victims. If you
just stop to think about that for a moment, 6,000
people. If you need a comparison, that would fill the
entirety of the new velodrome stadium built for next
year's Olympics, and those are the details obtained by
just one private detective. Of those 6,000 people, the
police have only managed to speak to about 600 so far.
Whilst their individual stories are all fairly
different and unique to them, they do have two important
similarities. Let's not forget.
One, all of these people were targeted because of
the information, private, personal or sensitive
information, which it was hoped could be gained to be
used for the purposes of stories in the
News of the World, stories which made the newspaper
money. That's why it was done: to sell newspapers. Not
to detect crime or to expose wrongdoing, not to protect
society or for the public good.
Which leads me to the second thing that they have in
common, that is the fact that none of these stories had
any public interest whatsoever. There is and was no
public interest defence open to those responsible for
such criminal activity. No defence for this flagrant
invasion of people's privacy.
News International's other Queen's Counsel,
Mr Silverleaf, basically admitted as much when he gave
his fateful opinion in the Gordon Taylor case after
seeing just the "for Neville" email back in 2008, and
no one says differently now.
As we know from the civil litigation, the other
things which News International have admitted, through
the very same Queen's Counsel, in the Sienna Miller
action in which judgment was entered against the
newspaper group, was that this was a scheme which was
devised or introduced between Mr Mulcaire and a number
of journalists. We say a very large number. The figure
of 28 has been mentioned in this Inquiry, and I have not
heard it corrected. But in any event, it was
a systematic and, it appears, highly efficient
arrangement which started at one end with Mr Mulcaire
using various illegal or unlawful techniques to obtain
private telephone numbers, PINs, passwords, unique
direct dial numbers and other access information,
information which was sometimes used to listen to
targets, or, it seems, simply passed on to journalists
for them to use themselves to access individual
voicemails. That was one end of the scheme.
At the other end, the ill-gotten gains, the fruits
of these labours, were turned into articles, if
possible. Either directly, sometimes as quotes, we
think, from the so-called pals or sources that you read
about, or just as stand-up stories for which they would
otherwise have had no proof.
It is important to remember that the admissions made
in the Sienna Miller action were not simply as regards
accessing her voicemails as well as her email account,
using her generic password, but also related to the
inclusion of that material in a series of articles and
the persistent harassment of her over a number of years,
both from the articles published and the continuing
targeting and surveillance of her.
As Mr Jay explained, whatever may be said now or in
January at the civil trial, it has been admitted by the
newspaper group not, as was originally claimed, that
they were simply liable for those activities of
Mr Mulcaire because he had been hired or commissioned to
carry them out, but also because their very own
journalists were mixed up in it, a large number, it now
I am not going to repeat the facts and figures the
Inquiry has already heard based on police material as to
the sheer scale of this practice, the number of pages in
Mr Mulcaire's notebook still being minutely analysed
five years after it was seized, or the volume of calls
made by him or made from within News International as
part of the routine plundering of people's voicemails.
What I would say, however, is that the evidence
demonstrates not so much a cottage industry, as Mr Jay
called it, but rather an industrial revolution,
a culture change, we say, away from proper old-fashioned
The precise details of this I will deal with in
part 2, not to mention at the civil trial at the end of
January, but I will just leave you with one calculation.
The police say in the 11,000 pages of Mr Mulcaire's
notebook it looks as if there is evidence of well over
2,000 tasks assigned to him in the four years to which
the notebooks relate. That means potentially 500 plus
stories each year from this single source. Which means,
on such a calculation, that there were possibly ten
stories in each edition of the News of the World which
were the product of phone hacking alone, even leaving
aside the other dark arts practised by the newspaper.
That may be speculation, although there is other
evidence which suggests higher figures, but even on
that, it is hard not to conclude that the very
foundations of this most popular newspaper throughout
these years were built on manifestly unholy and
And, if the newspaper was receiving such an endless
stream of stories, and a significant number of
journalists were involved, then it must surely raise
questions about who knew what and at what level. Again,
that is something about which I will have much more to
say in part 2.
Can I leave you with this taster? Can it really be
sensibly argued that this is a simple case where checks
and balances were not properly observed and that
a handful of rogue journalists were allowed to run amok
with the company chequebook? Or, rather, was such
activity, the systematic and deliberate employment of
unlawful methods, encouraged or condoned at higher
positions in the newspaper for the purposes of obtaining
stories about the private lives of individuals, the very
lifeblood on which this newspaper prided itself?
Whatever may be the knowledge of those in senior
positions at the time, there was on any view a concerted
effort, we say, after the event, to conceal the ugly
truth from ever surfacing.
There is little that can be said about this because
of the criminal prosecutions, at least in terms of the
individuals involved. However, some general comments
can be made about the bigger picture.
Whilst it is comparatively easy now to summarise the
activities, the way it has unfolded has little, if
anything, to do with News Group Newspapers coming clean
of their own accord. Hardly a great advertisement for
An examination of the state of mind of those who
were involved, especially in successive hearings before
the Parliamentary Select Committee, has led to
inconsistency and corrections, a tangled web, one might
say. But what can certainly be said is that it has
revealed at the very least that someone somewhere is not
telling the truth.
In order to assess the culture, it is important to
remember what was said by the News of the World in July
2009. Let me pick out some highlights of the statement
they put out on their website. A statement which
News International, and that was the website it was put
out on, said they had deliberately delayed making until
all relevant facts had been analysed and checked, both
internally and externally, and this is the statement:
"News International has completed a thorough
investigation into the various allegations made
referring to Nick Davies' initial story. Apart from
matters raised in the Mulcaire and Goodman proceedings,
the only other evidence connecting News of the World
reporters to information gained as a result of accessing
a person's voicemail emerged in April 2008 during the
course of the Gordon Taylor litigation. Neither this
information nor any story arising from it was ever
published. Once senior executives became aware of this,
immediate steps were taken to resolve Mr Taylor's
"We can state with confidence that apart from these
matters there is not and never has been evidence to
support allegations that News of the World journalists
have accessed the voicemails of any individual or that
News of the World or its journalists have instructed
private investigators or other third parties to access
the voicemails of any individuals.
"Further [they stated categorically], in the context
of allegations having appeared in not only the Guardian
but the BBC and Sky, it is untrue that officers have
found evidence of News Group staff, either themselves or
using private investigators, hacking into thousands of
mobile phones; it is untrue that apart from Goodman,
officers found evidence that other members of
News Group's staff hacked into mobile phones or accessed
individuals' voicemails, and it is untrue that
News Group reporters have hacked into telephone
voicemail services of various footballers, politicians
and celebrities named in reports this week."
Pausing there, it is a telling feature of the
scandal that the reporting of it was largely, if not
exclusively, confined to the broadsheet newspapers and
the broadcasting media.
The other tabloids, or popular newspapers, ran
a million miles from it in the opposite direction. No
screaming headlines, for once. No finger pointing
between competitors in a brutally competitive market.
How interesting, you might think.
Although the myth of one rogue journalist has
thankfully been exploded, it is one which was
perpetuated for some time by the News of the World.
Even as recently as September 2010, the group issued
a public statement in the face of mounting evidence
which said simply this:
"We reject absolutely any suggestion that there was
a widespread culture of wrongdoing at the
News of the World."
Of course, it's important to bear in mind, sir, that
as Mr Pike, one of its external solicitors, admitted
only a few weeks ago to the Select Committee in their
unenviable task of trying to uncover the truth of who
knew what and when, that News Group solicitors knew
perfectly well from 2008, some two years earlier than
this statement was put out, that the first defence of
rogue reporter defence was blatantly untrue but the
solicitors felt bound not to reveal this information
because of client confidentiality. Solicitors are bound
to keep the silence of their clients, but the clients,
of course, are not restricted in this way.
The Inquiry will hear from the solicitor Mark Lewis,
who will explain in his own words the story of how his
claims against News Group started, his dealings with
News International and therefore how the
News of the World eventually met its fate.
Mr Lewis's account of what happened to him, how the
Gordon Taylor case ended with an enormous settlement and
later the Dowlers' too, how he has been the subject of
attack by those in authority, the police and even the
PCC in the course of his work and finally how he
personally became the target himself of
News International, would read a little like
a John Grisham novel if only it was fictional, but the
truth, as Mark Twain said, is stranger than fiction.
Indeed, the revelation in the last few weeks that
not only was he under surveillance but private
investigators were also instructed to and did carry out
covert surveillance on his family, filming his ex-wife
and his teenage daughter, is, to use the words of
News International's own counsel yesterday, totally
unacceptable. And whilst an apology may be some comfort
for Mr Lewis, and no doubt he can be asked this, it is
important to remember that as with this fresh disgrace
and the previous drip drip of revelation after
revelation about the conduct of News of the World, that
it is all well and good apologising once you've been
caught out. How much better if the stables, however
Augean, had been cleared out voluntarily by this
organisation. Hardly, I would suggest, a task of
The timing is critical, too, for the newspaper was
caught out in this respect not in some nefarious
activities in the dim, dark days of 2005 and 2006, at
the height of Mr Mulcaire's activities. This was
commissioned and discussed with solicitors as recently
as the middle of last year, at the same time that
News International's offices were telling the Select
Committee that the organisation was trying to get to the
bottom of what had gone so horribly wrong. It is clear
that News Group's response to this was instead to
consult with their solicitors -- of course, not the
so-called greedy claimant lawyers, but their external
solicitors, Farrers, about commissioning surveillance of
those conducting litigation against them, surveillance
designed to unearth the true scale of what Mr Davies of
News International describes as the wrongful and
Mr Lewis was targeted for standing up to a powerful
newspaper organisation, but he isn't the first, as you
will hear from me later, and despite the best of hopes,
I suspect he may well not be the last. He wasn't,
certainly, alone in terms of those seeking to hold
News International to account. No, it appears that the
organisation commissioned private investigators to carry
out surveillance of other key lawyers whose clients were
bringing civil claims against News Group, such as
Charlotte Harris, who prepared, amongst others,
Mr Clifford, and Mark Thompson, who prepared
Sienna Miller and let us not forget that
News International also set investigators on members of
the Parliamentary Select Committee themselves.
These, you might think, are the tactics of fear and
desperation. But I ask you this: is this what
journalism or the protection of it comes to,
organisations setting themselves up so far above the law
that nothing seems to be beyond the pale? What
a culture. What an ethical vacuum, and from a newspaper
whose moral crusade is still being championed by
News International even yesterday and filled the pages
of its final edition.
And yes, you might say, in this example it may be
the culture of just one of the players in the market,
but it is, or at least was, a highly influential one,
and we say fairly representative in a number of respects
of the rest of the tabloid market.
Before I finally leave the issue of hacking, I need
briefly mention two things.
Firstly, it is important to say that what we have so
far may only be just the tip of the iceberg. I don't
just mean the fact that the police may only have
notified about a tenth of the total number of victims of
this scandal. Two of the core participants giving
evidence next week will provide a glimpse of what
I mean: Mr Hurst, a former member of British Army
Intelligence, and Ms Jane Winter. Both will deal with
how their computers and emails passing between them were
illegally accessed by private investigators working,
they say, for the News of the World by the use of Trojan
Mr Hurst's claim was the subject of a Panorama
programme and is probably familiar to some of you here.
He alleges that his emails were hacked into to obtain
information and documents about activities connected to
his investigations in Northern Ireland. Ms Winter, with
whom he communicated, worked for an independent
non-governmental organisation striving to ensure that
human rights are respected in Northern Ireland.
The second thing I must mention, something Mr Jay
said in his opening on Monday, is that the use of
hacking into voicemails may well not have been
a practice hermetically sealed within the four walls of
the News of the World's offices. Indeed, as
Richard Peppiatt, the ex-Star journalist who walked out
in protest at tabloid culture, asked rhetorically
himself at the seminar: who seriously believes that
there was just one rogue newsroom, or one rogue
investigator, for that matter?
Whilst Mr Davies was at great pains yesterday to
dispute the action brought against the same defendant,
News Group Newspapers, by my client Jude Law over his
claim of hacking by the Sun newspaper as well as the
News of the World, and to downplay the evidence against
the sister newspaper, it would be wrong to think, and
indeed as much has been said in the Chancery Division,
that the corner names which were mentioned by Mr Jay are
by any means the only basis upon which Mr Law's claim is
brought. Neither of us can say any more. It is
a matter which will be tried in the Chancery Division,
although not in January of next year, unfortunately.
Sir, I don't know if that's a convenient moment to
LORD JUSTICE LEVESON
Certainly. Shall we just have until
half past, and then we'll come back for another half an
hour and then you'll choose your time to break for the
I'm very grateful, sir.
LORD JUSTICE LEVESON
Thank you very much.
(A short break)
LORD JUSTICE LEVESON
Yes, Mr Sherborne.
Let us pause for a moment then to just take
stock. Outrageous and shocking as it is, the practise
of illegally accessing people's personal voicemails is,
I would suggest, just one symptom of a much greater
disease afflicting the tabloid press.
As you reminded Mr Caplan yesterday, hacking, as
I mentioned earlier, is not the only reason we are here.
Although, as I've said as well, having listened to the
core participants at the seminars last month, one might
be forgiven for thinking that other than hacking,
regarded as a historic and isolated lapse of judgment,
there was nothing to criticise, really.
It is no surprise, therefore, with such an attitude
as that from the popular press, that so little publicity
was given to the Information Commissioner's report when
it came out in 2006.
Given that even now there is a desperate attempt to
avoid its conclusions, I'm going to highlight some of
the things that were said in this initial report, "What
price privacy now?" a phrase to which I will return.
Mr Thomas concluded, the Information Commissioner,
"investigations by my officers and by the police
have uncovered evidence of a pervasive and widespread
industry devoted to the illegal buying and selling of
He went on to conclude that:
"The trade in such information represents so serious
a threat to individual privacy that this is the first
report I or any of my predecessors have presented to
In paragraph 5.6 of his report, he specifically
addressed the issue of the media. He said:
"Journalists have a voracious demand for personal
information, especially at the popular end of the
market. The more information they reveal about
celebrities or anyone remotely in the public eye, the
more newspapers they can sell. The primary
documentation seized at the premises of the Hampshire
private detective consisted largely of correspondence,
reports, invoices, settlement of bills, et cetera,
between the detective and many of the better-known
national newspapers, tabloid and broadsheet, and
"In almost every case, the individual journalist
seeking the information was named and invoices and
payment slips identified leading media groups. Some of
these even referred explicitly to confidential
information. The information which the detective
supplied for the newspapers included details of criminal
records, registered keepers of vehicles, driving licence
details, ex-directory telephone numbers, itemised
telephone billing and mobile phone records and details
of friends and family telephone numbers.
"The secondary documentation seized at the same
premises consisted of the detective's own handwritten
personal notes, and a record of work carried out, about
whom and for whom. This mass of evidence documented
literally thousands of Section 55 offences and added
many more identifiable reporters supplied with
information, bringing the total to some 305 named
Somewhat surprisingly, given the true public
interest in this of all stories, it barely received
a mention, at least not in certain sections of the
press. Let me write the headline for you; after all, no
newspaper actually did:
"What price privacy? Tabloid newspapers are chief
suspects in the routine illegal buying and selling of
personal information. It's official, confirms
Information Commissioner. See pages 4 and 5 inside for
the league table of shame."
And who heads this table? Well, I won't name the
main offender, but if I was indulging in the press'
favourite practice of jigsaw identification, I might say
it earns hundreds of millions a year, it lives in
a plush multimillion property off High Street Ken, and
its editor is also the chairman of the PCC's Editors'
Code of Practice Committee.
It was helpful to hear Mr Caplan say that steps were
taken by this editor, once the report came out, to stamp
out these practices. Perhaps, once he's heard from the
victims who come to give evidence here, he and other
editors of that section of the market will continue to
put their houses in order, whatever it is that you
recommend, sir. After all, that is why we are here, and
it might just be a good start.
But again, we mustn't forget that the roll call of
dirty tricks or journalistic tools of the trade, as
I suppose they might be called, does not involve just
hacking or the illegal trade in personal information.
There is also the obsession, in a particular area of
this market, with the invasion into the private lives of
well-known people, the hounding of people in the public
eye, the intrusion into the grief of victims of crime
and the unforgivable vilification of those caught up
unwittingly in such events, as well as other ethical or
cultural problems which my clients will give evidence
Let's begin, then, with the invasion of privacy.
Right at the outset in true media lawyer style,
I know I meant to say in the clearest of terms that
freedom of speech is an essential part of any democratic
society, and I do. No one could or does say otherwise.
But, more importantly, it is only one part of the
equation. The other side, so frequently ignored or
understated by the press, is the right to respect for
private life, for home, for family life, for
Privacy, contrary to what the newspapers believe, is
not a dirty word, and it does not necessarily mean the
same as secret. Indeed, it is a much wider concept, and
whilst I could give you a legal lecture about its
importance, I may well commit, as I said earlier, some
of this to written form.
What it means quite often is nothing more than
a type of freedom in itself, the freedom, that is, to
make choices, choices about what we do, choices about
what we do in private and also what we do in public or
semi-public places sometimes, provided that the activity
is one which there is a reasonable expectation would
remain private. And by private, again, I do not mean
Let me give you an example of this freedom of choice
in relation to photographs. When I come back from
holiday, if I get one, I take my photos to be developed.
Some, it turns out, are terrible; most, in fact. Whilst
I might show all of the ones I get back, no matter how
terrible, to my family, and maybe only the semi-decent
ones to my friends or work colleagues because I want
them to see a certain historical monument or something
similar, there are some which should never see the light
of day. That is my choice.
Now, the ones that I don't show may be almost the
same as the ones that I do. They may, for example, be
a bad light or I may be pulling an embarrassing face or
something, but the fact that they may contain similar
information to the ones that I do show is not really the
point. It is my choice which of those moments I show
and why, and just because I only show some of them
doesn't mean that Snappy Snaps or some other generic
high street developers can show all of them in their
window. It is this freedom of choice, or, to use
another dirty word, control, about how I portray myself
to the world or what of my private life I put in the
public domain, and it's something which we should all be
entitled to do; at least, that is, unless there is some
countervailing public interest, a topic to which I will
turn, albeit relatively briefly, in due course.
The same applies to what I may do in private or in
semi public or public places. It is about respect for
other people's privacy, regardless of whether you are
a celebrity or not.
Now, if you expose your entire life to the press and
trade off that, truly and actively trade off that, then
it may be a different story, I accept. But examples of
that, proper examples of that, are few and far between
in reality, as some of the core participant victims
giving evidence will explain. Most importantly, it is
that kind of person, who exposes their entire life to
the press, who is not here complaining to you, sir.
This freedom of choice is one which you or I, as
ordinary members of the public, take for granted, but
for people whose careers or talents place them in the
public eye, they apparently cannot.
It has often been said, even by Lord Hoffmann who
has been quoted wrongly by at least one editor as making
freedom of speech a trump card, that a right to privacy
is a part of every human being's development, and if
I may be permitted a moment of lofty prose, the respect
which is given to an individual's privacy is as much
a mark of a tolerant and mature society as we like to
believe ours is, as a free and forceful press.
There I go again, putting these two rights, or
principles, which often clash, on an equal footing, at
least to start with. That is, of course, until the
facts of any particular case are scrutinised. Well,
I make no apologies for doing so. Not only is a it
right as a matter of common sense; it is the law, both
here and in Europe.
I know the press don't like this, and I will return
to this in the context of Mr Mosley's story in a moment,
but that is the position. Freedom is not an unqualified
It is noteworthy that it was an American writer,
Elbert Hubbard, born and bred on First Amendment
principles, who famously described responsibility as the
price of freedom. The fact that he's also famous for
defining an editor as a person employed by a newspaper
whose business is to separate the wheat from the chaff
and to see that the chaff is printed is too tempting not
Whilst I'm happy to debate these issues in front of
this Inquiry, indeed with anyone, it is in truth an
academic argument, and I say that for two reasons, the
two different definitions of the word "academic".
Firstly, because it is largely irrelevant, since the
stories which are the subject of the injunctions about
which so much heat is generated by the press, never do
they contain any public interest at all. They don't
involve politics or corruption or the misuse of public
money. They are not what one might call the product of
investigative journalism. Far from it. They involve
celebrity gossip, sport and sex. These are the type of
stories where the law is now being presented as a threat
to freedom of speech.
The second reason why it is an academic argument is
that however clever the legal or intellectual arguments
may be on each side, the imperative which really drives
the newspaper is money. Stories like this sell
newspapers. Maybe not literally on the news stands, but
these exclusives capture or keep the readership, or so
the newspapers believe, and with readership figures
comes advertising, such as there is left. And if proof
of that is needed, then why is it that you heard some of
the media representatives at the seminars citing what
was said by various commentators or even the odd judge
or two is falling into the age-old trap that public
interest is defined by what the public are interested in
or curious about, when they said that there was a real
public interest in these newspapers being allowed to
continue publishing such stories.
Indeed, the attitude of the tabloid press to privacy
and the challenges which this represents is neatly
encapsulated, I say, by the evidence given by Mr Mosley.
I say the attitude of the tabloid press generally as
opposed to the News of the World, which was the
particular newspaper that so spectacularly destroyed his
privacy once and for all, because of the haste, as
I will describe later, of the other newspapers from the
same market to rubbish Mr Mosley after the decision, to
rubbish the judgment, and quite remarkably, to rubbish
even the judge who made it in July 2008, a pattern which
has now become familiar in a certain section of the
It is a startling feature that despite this obscene
rush to trash the judgment and condemn it as wrong,
there was never any appeal by the News of the World,
a point I think you noted, sir, during Mr Jay's opening.
Nor was there any suggestion by the government in its
submissions to the European Court that the decision was
wrong. And how, I ask, could it be?
The story which the News of the World blasted across
its front page with the screaming headline, "Formula 1
boss has sick Nazi orgy with five hookers", revealing
the details of Mr Mosley's sex life together with
graphic images, has nothing whatever to do with public
interest. Mr Mosley's work as president of the FIA may
have involved a public dimension in terms of imposing
sanctions, for example, on the Formula 1 industry, but
as much, if not more, was about road safety, something
which is really rather boring, I can tell you, but
nevertheless incredibly important.
Mr Mosley didn't court publicity. Neither he nor
his wife nor his sons had any interest in being
associated with the glamour of motorsport. However,
whilst before the end of March 2008, he may not have
been well known to the average member of the British
public, and that was a deliberate choice, he is well
known now, though. Let's be honest. Who can look at
him without thinking about what he chooses to do with
other consenting adults in private? And then stop, and
ask yourself this: is this something you really feel
you're entitled to know about? Whatever your answer,
you do know it. And once you know it, it's too late.
The fact that he won his case does nothing to remedy
that. How does it feel for Mr Mosley, a man who has
devoted much of his life to ensuring the safety of
others, about which very little is written? He will
Let me go back a little, though. I remember that
telephone call on the Sunday morning at the end of March
of 2008, and I confess I was reading the
News of the World at the time, and there it was on the
front page. That is how Mr Mosley first saw it too. He
wasn't given any warning in advance, despite the obvious
devastation it was likely to cause to his private life
and to that of his family. Was this an accident? I can
answer that. I say I can. Mr Myler, the editor of the
News of the World, answered it himself in his evidence
at the trial. He admitted that the failure to give any
notice was a deliberate attempt to avoid Mr Mosley going
for an injunction, as he suspected he would get it.
Extraordinary. And yet the newspaper did not bat an
eyelid at this deliberate decision to remove any
opportunity for Mr Mosley to protect his article 8
The balance between freedom of speech and respect
for a private life is an exercise which, if conducted at
all, happened entirely within the editor's office, made
by an individual -- and this is not personal to
Mr Myler -- who had a direct commercial interest in
publishing this story. Is this the right way for the
law to work? It certainly is how the press want it to
Whilst the original story with the Nazi line was
bad, in the follow-up story, the newspapers sought to
rub salt into wounds because Mr Mosley had the temerity
to publicly state that his private activities had
nothing to do with the Nazis or anything Nazi at all.
It was absurd.
Indeed, he was called a liar for this in the
follow-up article, which was published on that second
weekend, a weekend whilst Mr Mosley was waiting for the
court to decide his emergency application to prevent the
very graphic images of him being published on the
Internet. The injunction was refused, as we all know,
even though the judge held that there was no public
interest in the story and the article was a gross
intrusion into his private life, and it was refused
because the damn had burst. Millions of people had
already seen these images, as the News of the World had
posted them on their website, and it had gone viral
across the Internet.
Mr Mosley was faced with a choice, as he will tell
you: whether to retreat and accept this humiliation,
something which the newspapers counted on that he was
likely to do, or instead to prepare himself for
a full-blown trial, with all the added embarrassment
that this would cause. Thankfully, he chose the latter.
Thankfully, not just for lawyers, but for ordinary
members of the public, because it is a case which has
strengthened the protection to the private life of all
What happened at trial is, of course, history, but
then so is his private life, history. As I said, it is
too late to put the genie back into the bottle.
And what about the News of the World? Well, they
obviously failed to make good the suggestion that there
was a Nazi theme, as they did other spurious public
interest arguments which the court rejected. But if you
want a little insight into some of the tricks of the
tawdry trade I have mentioned, listen to Mr Mosley as he
will tell you that the Nazi theme was preconceived story
for which they needed the facts to fit.
We know that because of evidence the
News of the World had to reveal in the action. Woman E,
the witness, who never showed up at the trial, can be
seen on footage shot the day before as they tested the
secret camera they were fitting her with. As Mr Mosley
describes in his evidence to the Inquiry, you can see
woman E being instructed by Neville Thurlbeck, a man
whose name is familiar to all here, the journalist
responsible for the story, trying to get Mr Mosley, as
he wanted woman E to do, to perform a sieg heil salute,
telling woman E how far Mr Mosley should be away from
the camera if she could get him to do that salute. Of
course, there was no salute, and as woman E later
apologised, she knew there was nothing Nazi about this
at all. Perfect example, you might think, of the
example described so vividly by Mr Peppiatt: let's
publish the story and worry about the facts later.
Publish and be damned is consigned to the history books
of Fleet Street, said Mr Hall. I beg to differ.
Entrapment was bad enough, but it didn't stop there.
There was blackmail, too, we say: the attempt by
Mr Thurlbeck to persuade some of the woman involved
after the story came out to play nicely with the
News of the World and to give them stories for the
follow-up edition under the threat of revealing their
identities. Mr Neville's email, what you might call the
"from" rather than the "for Neville" email, even sent
these terrified women unpixelated images of themselves
which had been obtained to show them what would be
published in the newspaper if they didn't play ball.
This kind of blackmail was so commonplace in the
tabloid psyche that the editor thought nothing of it at
trial. As the judge described it -- this supposedly
amoral judge, as one particular newspaper termed him --
it disclosed a remarkable state of affairs.
As I say, Mr Mosley won his action, but at what
cost? And I mean cost in real terms as well, because
though he was awarded £60,000, the largest privacy award
to date, he was left out of pocket, particularly as he
had to spend considerable sums trying to clear up
literally thousands of articles on the Internet or
reposting of these voyeuristic images, and he will tell
you about that.
More importantly, what about the cost to his family?
What price privacy, one might say.
How did the tabloid press deal with this defeat?
Well, having lost in Court 13, the News of the World
editor looked for a different kind of appeal: in the
court of public opinion, that is. He ran straight to
the steps of the RCJ attacking the judgment and accusing
the judge of bringing in a law of privacy through the
back door, whatever that is meant to mean. He sought to
challenge the decision, defending the article, despite
the judge's clear rulings, as a legitimate and lawful
publication, and decrying this as, yes, you guessed it,
a chilling effect on free speech. Our press, he said,
is less free today. Our media are being strangled by
He was not a lone voice, however loud. The Sun
joined in too, with the headline, "The day that freedom
got spanked". Of course, the Sun, we hear now, is
trying to distance itself as fast as it can from its
former stable mate.
The Daily Mail stepped in, too, to defend the
News of the World as its editor attacked the judgment
and, more importantly, the judge as well. In a speech
to the Society of Editors, Mr Dacre complained that the
law was coming not from Parliament but from amoral
judgments, words he said "I used very deliberately from
arrogant and amoral judgments of one man, a judge with
a subjective and highly relativist moral sense".
His attack went much further and was far more
personal, and I won't repeat it, but it was on a judge
who was simply applying the law as he was required to
do, and, most importantly, as Parliament has in fact
accepted by its adoption of the Human Rights Act and the
Convention rights under it, and as the House of Lords
has frequently endorsed.
But once again, let's not let the facts get in the
way of a good story.
It is an interesting insight into how this section
of the press regards itself above the law and it is
familiar from the way in which they treat injunctions
ordered by the court preserving privacy.
This Inquiry may recognise the rubbishing by editors
of those who make the decisions as a way of undermining
the process itself. Sadly, in Mr Mosley's case, as
appears in several other of the accounts you will hear,
there is a terrible postscript.
In the aftermath of the trial, Mr Mosley's son, who
was suffering from depression, died of an overdose,
something which he strongly believes was in some way
attributable to the very public humiliation that he
received. The press's reaction to this deeply sensitive
issue hardly covered them in more glory. As Mr Mosley
tried to sort out his son's personal effects, he was
mobbed by journalists at the house, even though he had
written to newspaper editors asking to be left alone.
An isolated incident? No. The same is true of his
son's funeral. For example, one of the reporters tried
to pass himself off as a rambler in order to get in and
All of this perhaps could have been avoided,
Mr Mosley would say, not just for his benefit but for
others who also find their lives ruined by unlawful
intrusions into their privacy. That is if prior
notification had to be given by newspapers before they
published stories about people's private lives. That
was the basis of his complaint to Strasbourg, that the
law should provide a proper remedy, one that is
practical and real, and what other proper remedy is
there for invasion of privacy? Because once something
is made public, nothing else will ever do. It's not
like libel, where an award of damages can prove to the
world that the allegation about which you complain is
untrue. The only effective remedy is one where the
stable door is shut, if it should be shut, before the
And who should decide whether the stable door should
be shut or not? Is it the courts? Trained independent
judges? Or would you rather it was the editors, whose
commercial interests lie in publication.
If you even need to give it a second thought, then
you only need to think for a moment about what we
learned of the mind of a tabloid editor from
Mr MacKenzie's performance at the seminars. And we
heard what Mr Myler too said at the trial of Mr Mosley.
He published the story even though he knew Mr Mosley
would probably have succeeded in injuncting it if
a court had been allowed the opportunity of hearing the
application. Again, this is a point which I am more
than happy to debate, but it is better perhaps if
I commit these legalistic arguments to writing.
Before we look at the real area of journalism, as
I say, where these arguments are tested, namely kiss and
tell stories, let me say one or two words about the much
discussed topic of public interest.
The difference between what is truly in the public
interest and what the public are interested in is much
simpler than newspapers like to make out. Indeed, it is
rather simpler when one realises something which
Professor Cathcart pointed out in one of the seminars,
namely there are two different senses in one which uses
There is on the one hand interest in the sense that
I like something, like I have an interest in football or
holidays in the sun, or interest as in something which
is good or bad for me, like I have an interest in the
outcome of a particular decision made by chambers, for
example, to put up my rent.
Of course, I can understand why the newspapers have
an interest, in the second sense of the word, in
confusing these two concepts. After all, what the
public are interested in, in the first sense, sells more
newspapers: celebrity gossip, generally tittle-tattle;
and what the public have a genuine interest in knowing
about: drug trials, what goes on in Europe with the
Central Bank and so on, mostly doesn't. As I always
tell my children, things that you enjoy are rarely good
for you, and I'm sure if they can understand it, I'm
sure journalists can too.
I'm not advocating boring newspapers. Don't get me
wrong, I like to read about gossip too. Most people do.
But just because I like to doesn't mean that I should,
or that newspapers should be able to invoke that
curiosity, that prurient interest in such matters, to
defeat an individual's wish to maintain respect for the
boundaries of their private life.
It is important to remember the distinction which
the Convention on Human Rights makes between these two
different and recognised roles of the press in society.
Namely, on the one hand, reporting facts, even if
controversial, which are capable of contributing to
a debate of general public interest in a democratic
society, what we like to call the press as a public
watchdog. And on the other hand, its role as reporting
on the details of the private lives of well-known
The former has a legitimate interest for the public.
The latter does not.
The Strasbourg court has said as much. Even though
it refused Mr Mosley's complaint about the lack of
a requirement in this country for prior notification, it
repeated the importance of the press as a public
watchdog, and therefore recommended that any constraints
on this role should be narrowly constructed, given the
importance of this kind of expression. However, as to
the role in its provision of sensational and lurid news,
intended to titillate, it said, or entertain or satisfy
the curiosity, your voyeuristic curiosity, as it
described it, of a particular readership, it recognised
that that was a limited role as compared to the
importance to maintain the private lives of citizens,
even if they have a public profile.
I would certainly not quibble with any of that.
There are various myths which have grown up around
the term "public interest", ones which are often peddled
through the press when arguing against these
injunctions. Not in court, since, as Mr Rusbridger
confirmed, they rarely do contest them in court, because
obviously they are hopeless, but rather through the
pages of their newspapers where they believe they can
influence the public more directly. As I say, I won't
take up time dealing with them now.
Nor the associated problem of how, even when such
orders are granted by the courts to protect the privacy
of individuals, and often accompanied with anonymity
orders, that they are somehow undermined by the press.
Indeed, there is nothing particularly remarkable
about anonymity. It is just the way of protecting the
whole purpose of an order, but it does seem to offend
against the sensibilities of a certain section of the
press who do their utmost to try and undermine this
anonymity, producing, as they do, just enough material
to speculate, and for that speculation to become rife
about the identity of the individual whom the court has
deemed worthy of protection.
Returning then to kiss and tell stories and
chequebook journalism --
LORD JUSTICE LEVESON
I think it's probably convenient now
and we'll resume again at 2.05 pm.
(The luncheon adjournment)