Afternoon Hearing on 08 December 2011

Hearing Transcript

(2.00 pm) LORD JUSTICE LEVESON Yes, Mr Jay? MR JAY Sir, I wanted to raise a point about next week's evidence, or at least part of it. LORD JUSTICE LEVESON Yes? MR JAY The evidence of Messrs Pike, Crone and Abramson, who are all lawyers. Thus far, their statements have been redacted to cover possible legal professional privilege. I say "possible" since that is in issue at the moment. There's obviously a pressing need that their statements are disclosed to the core participants without privileged matters or possibly privileged matters being covered. However, there are issues, particularly in relation to Mr Crone's evidence, less important with respect to Mr Abramson's evidence, regarding the scope of privilege, which I would be inviting you to resolve either tomorrow morning at 9.30, if we are ready to resolve them; in the alternative, Monday morning at 9.30. Plainly, I'll need to discuss the matter with Mr Rhodri Davies, who is directly affected by this debate, and we wouldn't wish the matter to come before you on other than a properly argued basis. I don't expect it would take too long to argue the issue, but it's right that this important matter be properly ventilated. LORD JUSTICE LEVESON Is it likely to impact on any of the other core participants? I mean, in particular is it a topic in which Mr Sherborne is likely to be interested? MR JAY Yes. And possibly Mr Garnham. LORD JUSTICE LEVESON Well, yes. So when you multiply up the lawyers that want to have their say, you multiply up the time that it's going to take. That's my experience. MR JAY Yes. As long as one doesn't multiply it exponentially, just add a little bit more in, but my submissions would as it were reflect the views of others in any event, but Mr Sherborne or Mr Garnham, if so advised, could add to the issue. There's also a possible privacy issue in relation to part of Mr Crone's evidence. If there are to be submissions about that, my view at the moment is those submissions in the first instance would need to take place in private. LORD JUSTICE LEVESON Right. Otherwise the point gets lost. MR JAY Yes. LORD JUSTICE LEVESON I understand that. I'm in your hands, Mr Jay. I would prefer it not to be on Monday, I think, but it can be tomorrow morning or at close of business tomorrow afternoon, which gives people the day as well as for those who aren't otherwise involved. MR JAY Yes, it's possibly quite a busy day for some of us, but I can always multitask. LORD JUSTICE LEVESON I'm sure. Otherwise I'm available to resolve that which I can resolve. It strikes me that what you're telling me is that there may be some hard-edged legal issues to think about, and of course I'll deal with them appropriately. Thank you. Yes, Mr Rhodri Davies? MR DAVIES I'm sorry to add to the shopping list, sir, but we have another point that we've raised in a letter to the Tribunal yesterday, which really concerns the same evidence as Mr Jay has just referred to, but it's not just a privilege issue. There is also an issue as to the division between part 1 and part 2 of the Inquiry. LORD JUSTICE LEVESON Yes. I think I understand what that point is. Of course that isn't hard-edged because there's a degree of discretion available to me. MR DAVIES Yes. LORD JUSTICE LEVESON The purpose for the division between part 1 and part 2 was specifically to avoid potentially prejudicing a criminal investigation or prosecution that might arise that was then being undertaken by the Metropolitan Police. MR DAVIES Yes. LORD JUSTICE LEVESON What I would be unhappy about doing, without making any decision about the point you're seeking to raise, even in part 1, is to restrict unnecessarily lines of inquiry which may be relevant to practice and which may impact upon solutions, but which don't impact on the criminal investigation. I'm sure you take the point. MR DAVIES Yes. Obviously we understand all that, but that still leaves quite a difficult line to draw. LORD JUSTICE LEVESON I understand that. Drawing lines is what I'm here for. If you require me to draw a line, then I will draw the line. Doubtless you'll continue discussing with Mr Jay so that you can decide where the line is without me, but if you need me, I'll have my pencil ready. MR DAVIES All I wanted to do was get that on the agenda along with the points which Mr Jay has raised, but it's probably sensible to do them all at once. LORD JUSTICE LEVESON It might be better to do them at the end of the day rather than the beginning, because I don't really want to interrupt the evidence which is quite lengthy that is tomorrow. MR JAY Yes. LORD JUSTICE LEVESON And if we have to go into Monday, then we have to go into Monday. If I can't do what I otherwise would be doing at 9 o'clock on Monday then I won't. MR JAY Thank you. LORD JUSTICE LEVESON Right. MR BARR Sir, we're going to continue the academic theme this afternoon. LORD JUSTICE LEVESON Very good. MR BARR The three eminent academics we have for the afternoon session are Professor Hargreaves, Professor Petley and Dr Mac Sithigh. Perhaps I can ask that the witnesses are sworn first of all, please. PROFESSOR JULIAN PETLEY (sworn) PROFESSOR IAN HARGREAVES (sworn) DR DAITHI MAC SITHIGH (sworn) LORD JUSTICE LEVESON Thank you all very much for coming and thank you for the work that you've put into providing the material which you have to the Inquiry. I think at least a couple of you have seen the approach that we adopted this morning, and I hope that you find that is conducive to the best elucidation of the issues. I decided that to have each one of you separately would not be the best use of your time, whereas what I really wanted to do was to encourage a debate and a discussion so that I could have the benefit of your collective and individual views, as I hope I'll get. But thank you very much for the considerable body of material which obviously has taken a long time to amass, which you and indeed your fellow academics have provided. Thank you. Questions from MR BARR MR BARR Let's do the introductions first of all. Professor Hargreaves first of all. You tell us that the submission from Cardiff University comes not just from you but also from Professor Justin Lewis, head of the School of Journalism, Media and Cultural Studies, and from Professor Richard Tait, Director of the Centre for Journalism? PROFESSOR HARGREAVES That's correct. MR BARR And you were Professor Tait's predecessor and have remained actively associated with the School of Journalism at Cardiff since then. In 2003 you became a founding board member of Ofcom and subsequently worked as Director of Corporate Affairs at BAA plc and then Director of Strategic Communications at the Foreign and Commonwealth Office between 2008 and 2010. In November 2010, you took up a new part-time chair in digital economy, based jointly in Cardiff's Schools of Journalism and Business. You tell us that you joined Cardiff as Director of the Centre for Journalism in 1999 and in reverse order, you were editor of the New Statesman, editor of the Independent, deputy editor of the Financial Times and director of BBC News and Current Affairs. PROFESSOR HARGREAVES Correct. MR BARR Prior to that, you spent a 11 years as a reporter and editor on the Financial Times preceded by three years as a trainee journalist with Westminster Press? PROFESSOR HARGREAVES Correct. MR BARR If I can turn now to Professor Petley, you tell us that you are Professor of Screen Media and Journalism at Brunel University? PROFESSOR PETLEY That's right. MR BARR Chair of the Campaign for Press and Broadcasting Freedom. PROFESSOR PETLEY Yes. MR BARR A member of the advisory board of Index on Censorship? PROFESSOR PETLEY Yes. MR BARR And of the editorial board of the British Journalism Review. PROFESSOR PETLEY Yes. MR BARR And you've written widely about the press. PROFESSOR PETLEY Yes. MR BARR Dr Mac Sithigh, you tell us that you are a full-time lecturer at the UEA Law School, University of East Anglia, that is. DR MAC SITHIGH Yes, I am. MR BARR You took up the appointment in August 2008. Your duties include teaching and research. DR MAC SITHIGH They do. MR BARR You are the Director of the LLM Information Technology and Intellectual Property, the convener for media and technology law research in the Law School and the school's liaison with the media at UEA into disciplinary research initiative. DR MAC SITHIGH Yes, I am. MR BARR Also the convener for media and communications law in the Society of Legal Scholars. DR MAC SITHIGH Yes. MR BARR You are the module organiser for three undergraduate modules, media law, media entertainment, sports law and Internet law. DR MAC SITHIGH Yes. MR BARR You set out also in your statement your other teaching commitments and of particular interest to us, you tell us that your doctoral thesis was on the convergence and the right to communicate assessing the application of media law to the Internet? DR MAC SITHIGH Yes, it was. MR BARR And you've taught media law and ethics as a part-time lecturer at Dublin Business School? DR MAC SITHIGH Yes, in 2008. MR BARR If I can now ask each of you in turn about your witness statements and starting with Professor Hargreaves, are the contents of the witness statement that's been provided true and correct to the best of your knowledge and belief? PROFESSOR HARGREAVES They are. MR BARR Did Cardiff make any contribution at the seminars? PROFESSOR HARGREAVES I did, yes. MR BARR And are you content for that contribution to be taken as evidence in the Inquiry? PROFESSOR HARGREAVES I am. MR BARR Professor Petley, if I can ask you the same questions. Are the contents of your witness statement true and correct to the best of your knowledge and belief? PROFESSOR PETLEY Yes, they are. MR BARR And are you content for your contributions to the seminars to be taken as evidence? PROFESSOR PETLEY Yes, I am. MR BARR Dr Mac Sithigh, are the contents of your witness statement true and correct to the best of your knowledge and belief? DR MAC SITHIGH Yes, they are. MR BARR Are you content for the UEA contribution to the seminars to be taken formally as evidence? DR MAC SITHIGH I attended the seminar. I don't believe I was able to intervene on the day so there is no such contribution. MR BARR I see. Thank you very much. We can now turn to the evidence that you can help us with. Perhaps I should indicate at the start that to an extent we are going to be covering the same issues as this morning, but we're hoping that you can take the debate even further forward in the extra time that we have this afternoon, and particularly in regard to your individual specialisms. Can I start with this, then. There was a consensus this morning that there is no problem with the quality and the quantity of journalism students coming to your academic institutions. Is that a consensus which you would extend to your own institutions? PROFESSOR HARGREAVES It's certainly true that there is no shortage of young people wanting to get into journalism by any means available, and that is what underwrites the supply of students to courses like the ones that we run. PROFESSOR PETLEY Yes, I mean we run undergraduate and postgraduate courses in journalism, and they are for the most part NCTJ accredited, and we certainly have in difficulty in attracting good students. DR MAC SITHIGH Our students at the University of East Anglia tend to be on wider media studies rather than targeted programmes in journalism. We have recently started teaching an MA in broadcast journalism, but the media courses across all the schools have continued to be popular. We've also found within the Law School increasing interest in studying the law of the media and the law of the Internet, which are relatively adding to our curriculum, but we have seen a lot of interest in developing new courses, particularly those that take a new media approach. We've seen that from students as well as from research students, PhDs. MR BARR There was a mixed response, if I can put it that way, to the accreditation systems on offer at present, something of a "take it or leave it" approach according to the courses. Is that also the experience in your institutions? PROFESSOR PETLEY At Brunel, we take it. We are NCTJ accredited. I want to echo really what my friend and colleague Brian Cathcart said this morning. If you do run a university course and it is NCTJ accredited, it is a terrific load for the students. They really do have to work extremely hard. Because I think in a university like Brunel, one wouldn't want to simply run the NCTJ syllabus and nothing else. We very much regard our courses as NCTJ plus. We are giving them something that they wouldn't get from anywhere else other than from a university environment, but the difficulty clearly is that it does require a great deal of work from the students, and when they perhaps compare what media studies students are doing, or English students are doing, they do realise that they are doing a great deal more. So I would very much echo what Professor Cathcart said. PROFESSOR HARGREAVES All of our courses are accredited by one or other of the three accreditors. Some of the challenges involved in those relationships were described this morning. I would say that at Cardiff we have not found it impossible to design and deliver the courses that we feel we should design and deliver through association with that accreditation process. We think that as a matter of general principle, this point of engagement with the industry, where the industry is clearly able to express its views about what it expects to see in education and training programmes, is of real value, and whatever the frustrations, I think it would be better to think about how that can be improved rather than how it can be evaded. DR MAC SITHIGH In the most part, as I alluded to earlier, the issue is not whether the NCTJ approach is good or bad, it's whether it's appropriate for a particular course, so one that would take say a wider cultural studies approach would not really seek NCTJ accreditation. The university is considering it for the more journalism-focused courses as they are launched and offered, and certainly something that's not been given active consideration, I found this morning's discussion instructive in that regard. The only other thing I would say from my experience of teaching media law to non-law students, certainly when we designed and we design our own syllabus for that we do look at what happens within the law component of the NCTJ and other accrediting bodies. We don't follow it directly. We take a slightly different approach. We're working towards a position where we would try and train lawyers and potential future lawyers and future journalists in the same classroom. It's something we've had a little bit of work on recently. I'm not sure whether that's compatible with the NCTJ's syllabus, I think there will be some challenges there, but certainly if you compare, as I referred to within my statement, the materials, textbooks and the nature as produced for NCTJ media law and media law as taught in law schools, they are very far apart. They are very different styles, very different traditions, and there's probably a lot that both sides could learn from each other. MR BARR Thank you. There was a general agreement this morning that there were no pressures bearing upon the institutions that we heard from this morning preventing them from delivering a good quality and sufficient ethical training. Do you each wish to join that agreement or do you have evidence of any pressures on your institutions preventing the delivery of solid ethical foundations to your students? PROFESSOR HARGREAVES I'd inflect it only in the sense that the establishment of this Inquiry indicates some of the ethical challenges which the industry faces, which journalism faces, and I think it would be a bit too relaxed for those of us who were involved in educating young journalists to think that we don't have things to learn and change, not least from the proceedings of this Inquiry. So I wouldn't like to give the sense that we think everything is so fantastic we could never improve it, but we pay a huge amount of attention to this in every aspect of the teaching, as other colleagues have said this morning and probably Julian will agree. PROFESSOR PETLEY Yes, absolutely. We lay great stress on the teaching of ethics. We don't have modules labelled "ethics", or "this week we're going to do ethics". I hope that a concern with ethics informs everything we do. I suppose the question that I would want to raise really is that if one stuck solely to the NCTJ syllabus, would one then be giving the students an adequate grounding in ethics? My own feeling is on the whole not. I haven't taught a great deal of the NCTJ modules, but I have taught one of the law modules for the NCTJ and it does seem to be a bit tick-boxy as Angela Phillips said this morning, you know, learn this law, learn that law, learn the other law. It doesn't really seem to me to address the ethical systems of which laws are after all the expression. I've said before we regard our degrees, both postgrad and undergrad, as NCTJ plus, and I would argue that the ethical components of everything we teach are part of the plus. LORD JUSTICE LEVESON Do you think it's a fair summary to say that the NCTJ course really reflects what happens today and as it were from the editorial perspective, from the newspapers' perspective, this is what they want today, without looking so much on what we should be doing and how we should be doing it tomorrow? PROFESSOR HARGREAVES I think that's one distinction. But I think that the other really important point to emphasise is that the NCTJ is a framework around which people who are designing and delivering courses can work, and that's what we all do. That's not in some sort of opposition to the NCTJ. It's building the teaching into the way that we deliver every aspect of the course, which I think is what you need to do with ethics. You don't want ethics to be Thursday afternoon only. You want it to be part of the whole learning experience. LORD JUSTICE LEVESON And so that it becomes part of the genetic make-up of whatever journalist you are turning out? PROFESSOR HARGREAVES Yes, it's about reflective journalism, which is I think a good phrase, one which was used this morning on a number of occasions. DR MAC SITHIGH I think the difficulty with trying to communicate a certain amount of law in a short time, you have to take that into account. I know it was mentioned at a number of the seminars, the growth in the length of essential law for journalists, which, whether that's a good thing or a bad thing, reflects the complexity of the laws you're dealing with. I think having an ethical component alongside that is important because if you take not just the code of the PCC, and I know we'll get onto that, but if you look at something like advertising, where standards and legal requirements are woven together in quite a nice fashion, it is important, I'd say, not to say that you have law here and then a separate syllabus on ethics, but to look at, for those who are making legally relevant decisions, is it just about mere compliance, is it about establishing what the line is, or are there other considerations you would take on alongside that? I think there is some room within what I understand of what the NCTJ does. They certainly ask about ethical matters in questions, although the format may not lend itself to that type of discursive process, but talking to colleagues in other institutions too, who teach media law, there is an awful lot of implied ethics in it when you're talking about what the law should be, is there a need for change, reform? Many people I know are teaching the Leveson Inquiry now. LORD JUSTICE LEVESON Yes, I'm rather disturbed to read that. DR MAC SITHIGH What's happening there of course is that whether the audience be journalism students or law students, they are speculating as to, particularly in the context of new media, where the law should go and is there a gap between the ethical standards or the ethical approach on what the law currently is, which leads to a further question: do you need to change the law or can you rely on that? But I think combining legal and ethical is quite important for my teaching and the teaching of others here, and I'd be reluctant to say that you could teach ethics as a separate module or line. That would be my LORD JUSTICE LEVESON In case I don't ever say it, to any of those who are conducting courses in this Inquiry, I'd be very grateful for the answers in good time before I have to produce them! DR MAC SITHIGH Noted. MR BARR On that note, moving to where, instead of consensus, we were getting concern: there seemed to be a concern this morning that however well prepared the student is at the degree stage, when they are in work facing very real pressures in the workplace, what I described this morning as moral hazards, can you, however hard you try, really prepare a student for a difficult environment, perhaps one where there are cultural difficulties? Is there anything that you can help us with about preparing through training a student for that experience? PROFESSOR PETLEY Well, I think I mean, one of the modules I teach to the postgraduates is called "Journalism in context", and we look at the political context and the economic context and the legal context, and we look at the work context as well and we certainly do warn students that if they do go and work on certain types of national newspaper, by which I really mean the red tops or the two mid-market tabloids, they may find life extremely difficult. But one of the things that we also try to talk about in context is that there's lots and lots of other journalism other than the national press. You know, an awful lot of discussion does tend to go on sometimes as if the only journalism that takes place is in the national press. As has been said already, we have an excellent, if shrinking, local and regional press, we have an excellent magazine sector, and when I was a journalist, which was throughout the 1980s, I worked, and very happily so, in the magazine sector. We have the trade press, we have the Internet. So yes, I certainly warn students that they might be faced with some very, very difficult situations if they went and worked for the red tops or the mid-market tabloids, and on the whole, the advice is: don't. PROFESSOR HARGREAVES I think that the only way you can prepare people for an assault course is to give them practice at different stages of difficulty and take them up the learning and fitness curve, and that's why so much of the work that we do with our students is practical, and where they encounter the issues and deal with them. But tomorrow morning I will be taking a group of about 90 postgraduate students through one of those quiz pad type interrogations where you look for the you know, where the points of moral agreement and moral disagreement are in a room, and then you talk it through. What I think you discover when you get stuck into any issue of journalistic ethics is that there are very few straightforward and simple black and white answers because journalism is one of those activities which makes large claims about its importance to democracy and public and civic life; correctly in my view, but therefore is obliged to be seriously and carefully reflective in response. But it doesn't mean to say that journalists will always obey the rules, and whatever rules anybody sets for journalism, there will be occasions when the best journalists will break them. DR MAC SITHIGH I would just add something that Professor Petley said, which is the importance of introducing students to context. We require students on all of the postgraduate programmes that are related to media, whichever discipline that's in, to take a common module called "Media and society", which is co-taught by 16 academics. We unfortunately didn't have the term "hot-tub" at the time, but we would now use it because it's the idea of putting together people from different disciplines, including, for example, International Development, which is one of the schools at the university, who again have a different approach to media, to questions of representation, balance between different parts of the world. So we would see that as well as the usual things you would have for students, work placements, visiting speakers from professions and so on. It's important that students are introduced to what others would say from different disciplines, from different parts of the world and even different platforms. You know, if someone has come in and their experience is around broadcasting, they are very interested in that, having that conversation between students is the best I think is something that we do as teachers to prepare. I mean, I can't verify exactly how that's going to work for them when they go beyond, but what we're trying to do is give them the tools to be leaders within their own professions as they go on, but it's a difficult question that you've put. MR BARR Perhaps we can then explore one idea that's been put forward as a way of giving an effective voice to the newly qualified and principled journalist in the face of moral hazard, and that's to introduce a conscience clause into the contract of employment. Perhaps I could ask you to consider this question: do you think that a conscience clause is likely to be an effective means of improving the ethical situation or does it give rise to more trouble than solution? PROFESSOR HARGREAVES I think it's a desirable thing to have. It wouldn't be effective in a corporate or newsroom culture where such things would be not counted as being very important. The mere insertion or the requirement to insert, if it could be required, such a conscience clause wouldn't solve the problem if you didn't address the culture problem. PROFESSOR PETLEY In my view, a conscience clause, which I would support, really would only become operable if you also had adequate trade union representation within the news place. We all know that the NUJ has been derecognised in many places. I'm sure that many journalists would like to be a member of the NUJ, but may feel that there's no point if my employer won't recognise me, or puts impossible conditions on recognition, as happens at News International, because after all the NUJ does have an excellent code of practice, and if a journalist could say, "Well, both the code of practice of my union and my conscience clause forbids me from doing this", and if the trade union had a reasonably strong presence in the workplace, that would be effective. But it's very, very difficult, as we all know, for individual journalists, however well meaning they may be, to stand up to harassment and bullying. DR MAC SITHIGH A conscience clause would certainly be something I would personally welcome. However, I would have doubts about its effectiveness in the absence of other processes at, for example, a management level as to whether it is honoured. I think relying on the employment relationship alone to enforce that clause would push things many years down the line, it would make it it would limit its impact. However, if we do at a later stage discuss the responsibilities of editors and proprietors, perhaps honouring that clause within contracts could be a part of that process. We've seen that in corporate governance, where individuals are required to sign off, to verify and so on, that has an impact on the employment relationships within that organisation. So I think, yes, it would be part of that package, but on its own it would be welcome but probably not a major change to what we've been talking about within this Inquiry. MR BARR We've heard of the culture of the real problem that emerges if there is a poisoned culture, and I was exploring through a conscience clause possible means of changing a culture from the bottom up through the giving a voice to the newly qualified journalist. You raised an interesting point there about culture, of course, comes from the top probably more than from the bottom, although that's an interesting debate. Is there any role for the academic side of journalism in teaching ethics to seasoned editors or is that simply a non-starter? PROFESSOR HARGREAVES Wondering whether a question of that kind might come up, I sort of went back through my little book of pithy phrases and sayings. There's a whole set of these going well back for why journalists should really not pay any attention to any of this. There's a posh version, which is Nicholas Tomalin in 1969: "The only qualifications essential for success in journalism are ratlike cunning, a plausible manner and a little literary ability." I don't think he had in mind a postgraduate training course. Or there's Kelvin MacKenzie's noted: "Ethics is a place to the east of London where the men wear white socks." Or if you want to be a little international about it, the journalist and satirist HL Mencken who described journalism as a "craft to be mastered in four days and abandoned at the first sign of a better job". So the journalistic culture, especially print journalistic culture, has a very long and deep history of thinking that what people like us do isn't very important. PROFESSOR PETLEY That's true of the UK, but you did quote Mencken there, of course, who comes from the States, where there's a very, very different culture, where ethical issues are much more ingrained and bred into journalists. It's perfectly true that in this country the study of journalism is extraordinarily recent, a very, very recent phenomenon indeed, whereas I mean I think Cardiff was the first place to start it. PROFESSOR HARGREAVES Yes, 40 years ago. PROFESSOR PETLEY Whereas in America, the study of journalism is almost as old as journalism itself. I'm rather hoping that those two quotes that Ian gave us from Kelvin MacKenzie and Tomalin now perhaps wouldn't be quite so current thinking in the British journalism workplace. I think the whole problem really, and I think this came up a little bit this morning as something Angela Phillips said, is we do really have even just talking about the national press, there do seem to be two completely different journalistic cultures. You have the cultures of papers like the Independent, the Guardian, the Times and the Financial Times, and then you have the journalistic cultures of the red top tabloids and the mid-market tabloids, and they really are two completely different things, and I think that perhaps it's about time that the editors of the ethically minded papers stopped making common cause with the editors of the papers which have actually brought this Inquiry into being. LORD JUSTICE LEVESON But should the ethics of the editorial approach be different? One of the issues that was debated when there was a challenge, as I mentioned this morning, to the background and expertise of those who are advising me, was: well, you can't understand a tabloid or mid-market newspaper unless you've worked in one. And I raised the question whether there was an ethical difference, or should there be an ethical difference, and I've not yet had the answer "yes", at least expressly, but whether in fact sub rosa there is PROFESSOR HARGREAVES I certainly am not going to be the first person to argue that there should be a different ethical regime, but I do think it is important to understand one of the reasons the tabloids have gone to the part of the market that they now most intensively occupy is that radio and television broadcasting has become so potent that it does for a mass audience news, if you like, with broadsheet values, to use terms that are almost disappearing from the lexicon, leaving the tabloids, as I think Paul Dacre said in a speech not too long ago, relying, in his view, for their commercial feasibility upon the pursuit of stories about celebrities and all of the things that are being debated around this Inquiry. It's not a question of there being one set of rules for one and one set of rules for another, but it does involve spending some time thinking about whether the same approach to interpreting those rules is obvious in these different circumstances, and there is a risk, there's clearly a risk that this Inquiry is already being seen in the tabloid press, and not only in the tabloid press, as one that is, as it were, going off into a sort of land of which those who criticise it would see as elitist and irrelevant to their concerns. Coming from a journalism school which was founded by the man who created the Picture Post, the great tabloid venture of its day, and a strong association with Hugh Cudlipp and the Daily Mirror, I think it's very, very important that this Inquiry does not in any way lose touch with journalists who work on the kind of areas that tabloid newspapers write about, because those are the areas that tabloid readers want to read about, very, very important LORD JUSTICE LEVESON I entirely accept that, and several interventions of mine over the last few weeks have tried to make it clear that the process whereby we're undertaking this Inquiry inevitably has meant that I've had six or seven days of those who are complaining about the activities of certain sections of the press, specifically to do with them, and I've had some journalists, as you know, feeling that and so the view has been expressed that I'm not getting any sort of sense of what the response from tabloid or mid-market newspapers might be, but that's merely a misunderstanding of the process. I will want to spend just as much time understanding that as anything else. But I wonder whether the process is different. It might be the subject matter is very different, so yesterday we heard about hacking into the phone of an arms deal, that sort of thing. I'm interested to know whether the considerations that would be given to that are really very different from the considerations whether it's appropriate to indulge in this sort of sting or that sort of kiss-and-tell story or the other sort of hack to get a story that might appeal to a different audience. So it's my rather long way of saying it, it's a question of whether the process should be different whether or not the material which is the subject of the interest of the journalist is the same or not. PROFESSOR PETLEY But the point is the Press Complaints Commission code applies to all newspapers, irrespective of what part of the market they're in. The law is applied to the newspapers, whichever part of the market they're in. I think the question to me that your question raises is: is it possible to have good popular journalism? Ian's already mentioned Cudlipp and people like that. Once upon a time the term "tabloid" was not a dirty word and in my view it shouldn't be a dirty word. Some of the best popular journalism in my view in this country was to be found on ITV in the 1970s and 1980s in programmes like World in Action and This Week, and the Mirror certainly of the 1960s was a remarkably fine popular newspaper. LORD JUSTICE LEVESON I'm certainly not treating the word "tabloid" as a dirty word. PROFESSOR PETLEY I know you're not. LORD JUSTICE LEVESON If I don't pick up that sort of thing immediately, somebody will interpret my silence as meaning something different. Because, as I said this morning, the art of putting across very complex concepts in a way that is visual, attractive and readily understandable by those who do not want to read dense newsprint is, I think, very important. PROFESSOR HARGREAVES The issue of whether or not a journalist might obtain or make use of a document in a way which is potentially in breach of the law it seems to me is the ethical issue is identical, whether that occurrence a hunt for a story about a celebrity or a hunt for a story about an arms dealer, but I think the word proportionality was used this morning, I think it's a good word. I think it is always right to reflect what the scale of importance of the story is. One would want, ethically, for the scale of importance to be measured in public interest terms, but that doesn't take you all the way home, I don't think, because there is a set of questions that people on the mass circulation papers are dealing with day in and day out, which is the pursuit of competitive advantage, and the existence of competition is a very, very important driving force. I mean, look at any journalistic market where you don't have it and you have pretty weedy journalism. LORD JUSTICE LEVESON Mm. PROFESSOR PETLEY But has competition actually driven standards downwards in the popular press, which is what many people, I think, would argue it has. PROFESSOR HARGREAVES I don't believe it's competition that is the first cause of that. I think if you look back over the long period that you need to think about on this matter but maybe we'll come to that later. LORD JUSTICE LEVESON Sorry, I'm always at risk of jumping ahead of a perfectly orderly discussion. PROFESSOR PETLEY We're having a seminar now. MR BARR Perhaps I could, having explored differences between tabloid and broadsheet, look at this distinction. You're preparing young journalists for work in old media and also in the new media. If we start with the principle, is there any difference in principle, ethically, to that preparation or are the ethical benchmarks the same in both old and new media? PROFESSOR PETLEY I would argue that the ethical benchmarks really are the same. I mean, it's really important, for example, to tell the truth. That seems to me an ethical benchmark. When it comes to matters of privacy, it seems to me that again the considerations are much the same across the media. It might be more difficult to enforce them in certain media than others, and obviously the Internet is a very difficult place to enforce anything at all very much, but I think that the principles for the most part do remain the same. Ethically. DR MAC SITHIGH I think certainly somebody who is going to be working in an online environment, they do face different challenges. The impact of what is published may also vary. There are also great opportunities. For example, material published online provides the opportunity to provide direct links to source material. You can say, "Here is my comment on this and here is a link to the data on which it is based, you can go and check it for yourself". There was mention this morning of right of reply as well. So there are certainly things you can do as well as things to be aware of. The material published online, once circulated, is difficult, as is common knowledge, to remove. If there are attempts to remove material published online, that can in some circumstances be counter-productive because it leads to a principled defence, again a principle that many would question, but a principled defence of circulation of material online, and therefore first publication becomes very important online. We've seen this in contempt of court materials. A photograph up just for a couple of hours can lead to serious contempt proceedings. So there are differences there. Now, it is important to try and identify a common core of standards, take the point that many laws are of general application, and I find this, and I've committed to this in talks and publications on a number of other occasions, I do find it disturbing that sometimes we still talk about the law not mattering online. I think even a number of esteemed witnesses, not today but on other days of the Inquiry, have suggested there is a large gap between old and new media. There may be enforcement challenges, as has been rightly said, you may need to think about whether the legal framework is adequate or indeed whether you are going about it the right way, but we are well into an age where law does apply online. There are people in prison for offences that have been committed with use of a computer or publication of material online. So I think there's a fear sometimes that even discussion on this gets the wrong end of the stick, to say that because law can't apply online we must, for example, change how we treat the old media LORD JUSTICE LEVESON The answer is we need to think about how we treat the new media. DR MAC SITHIGH It is LORD JUSTICE LEVESON And I'd like to know the answer to that. DR MAC SITHIGH We've seen I think a good discussion around this in the area of broadcasting about looking at, say, a television service that's streamed on the Internet or an on-demand service. A very long debate at European level to try and set out principles, the result being really a two-tier system: a higher level of regulation for any live service, whether it be on a television set, on a computer, and then a less intensive but harmonised system of standards for on-demand services, recognising that the relationship between the viewer and the producer or editor is different because you make a choice it's probably closer to a newspaper model where you choose what you consume and so on. There has been a lot of interest in relying on Internet intermediaries as an alternative for some of the forms of media regulation that we are familiar with in the broadcast area and to a lesser extent in print, relying on the web host or the ISP to play a role here. I'm not sure whether that's something you want to get into now or wait until later LORD JUSTICE LEVESON It is something I certainly at some stage want to get into, because I'm very concerned, and I've heard during the course of the Inquiry that one of the difficulties in the print media is that they are constrained in ways that online is not constrained, and one doesn't need to go into the debate about superinjunctions to be aware that we are at risk of trying to deal with an issue which has the result merely of the whole thing popping up somewhere to the right and us having to start again, if that makes sense. DR MAC SITHIGH Of course it makes sense, and it's something to be very aware of. I'm less comfortable with the idea that it should then dissuade you from taking action. There are plenty of areas where the law as understood in this room is not complete or is not 100 per cent effective, but we try our utmost for it if we believe there's an important enough social value. LORD JUSTICE LEVESON I didn't say I wasn't going to do that. DR MAC SITHIGH No, of course not. But I think there can be advantages to falling within a regulatory system as well and there can be ways in which the online media can be encouraged to meet standards, to take advantage of the certain, albeit limited privileges that are accessible to I just mentioned in my statement a whole collection of ways in which journalists are mentioned, publications are mentioned, the media are mentioned. They are at cross purposes and I believe that's a problem, but I would see some scope in encouraging the fulfilment of public interest standards as part of that package, and if you want to benefit from I think VAT was mentioned earlier today as well. I think there are many more issues beyond that. You can LORD JUSTICE LEVESON VAT wouldn't work on the Internet. DR MAC SITHIGH No, but I think the point I'm making on that is where there are privileges associated with the press and where there is demand, and there can be demand for this from citizen journalists, from individuals and so on, to be entitled to privileges of the press, then you can say yes, there is a framework for you to have that entitlement, but you must demonstrate this or you must have some form of demonstrating your commitment, your responsibility, your compliance with the rule of law and so on. I do think without saying, "Let's regulate the Internet and let's apply existing regulatory models in full", that you can create incentives for compliance, that you can try and encourage good behaviour, and we've seen that in many areas of online communication around copyright, although there are criticisms around that, around domain names, around search engines, so I don't think it's a task that is beyond this Inquiry. I think there are other issues happening around defamation and so on in other rooms which feed into it, but I think it's a road which you and your assessors should go down. PROFESSOR PETLEY I certainly think we need to get away from the old idea that the Internet isn't regulatable. We've seen from countries like Saudi Arabia or Iran or China that it is regulatable. LORD JUSTICE LEVESON Turn it off. PROFESSOR PETLEY Yes, but democracies don't want to be seen to be acting as outright censors, but in this country certain kinds of illegal content will be blocked or filtered or reported to the police by the Internet Watchdog Foundation and Daithi's already said that one of the ways in which pressure is applied to take material off the Internet which is deemed to be illegal is by pressuring ISPs, Internet service providers. So it is possible to regulate the Internet. Whether it's desirable is a slightly different matter, but possible it certainly is. PROFESSOR HARGREAVES I'd be a little more cautious, not least because the Internet is changing so fast, the amount that it will have changed between the start of your Inquiry and its end will itself be substantial. I think the dimension that I would draw attention to is the dimension of the changing definition of what a journalist is and what journalism is that arises from the Internet because of the open-access nature of the technology. One of the things certainly that as a journalism school we're thinking about is how do we play our part in educating people who are going to be journalists for, you know, perhaps one-tenth or one-fiftieth of their time rather than being full-time journalists working for a newspaper in London, and feeling our way into all of that, I don't think that you at any point think well, the ethical requirements or standards or debate is fundamentally different, but you do have to recognise that this is culturally a very, very different place to be operating. MR BARR That takes me to the next thing I wanted to explore. Having dealt with the principle, I'd like to ask you about the practice, and in particular whether the ethical issues which in practice arise for journalists working in new media are different to those which arise in practice in the old media, and I should flag up that I was put onto this question by the article which you submitted, Dr Mac Sithigh, which suggests that attribution of sources is very common amongst bloggers and isn't really a problem on the Internet, whereas there might be attribution issues that we've heard about in the old media. Are the issues that crop up in practice different? PROFESSOR HARGREAVES I stick to my sentiment I just made, which is that they're not fundamentally different but they're very different in practice, in the way that things operate. We thought that 24-hour rolling news introduced a pace which challenged journalistic reflectiveness. The Internet does that with bells on and it creates the opportunity for instant tit for tat exchange and in those exchanges, you know, unwise or harmful or factually incorrect or libellous things can take place. I don't believe that I've come across an issue in Internet communications that has made me think: that is by type some sort of new ethical issue. You take, for example, the Wikileaks issue of the Diplomatic Service cables and so on. That, as far as I could see, didn't involve any new ethical dimension, but what it did involve was a difference of scale, that because you can hold and transfer such huge volumes of data, that's the difference. The issue of whether or not it's right to obtain the material by whatever means you obtain it and distribute it is not, I think, ethically different in the new media versus the old. DR MAC SITHIGH I think that makes LORD JUSTICE LEVESON It's size and pace, isn't it? PROFESSOR HARGREAVES Yes. LORD JUSTICE LEVESON The examples I've been given before. Peter Wright and the Spycatcher, that could be contained here but then X months down the track could be printed in Australia with all the problems that that generated. But now this isn't months, this is minutes. DR MAC SITHIGH I think there is an important aspect of that in that the issues may not change but the number of people who are presented with them does increase, and this is a point I've argued academically regarding you have an existing law, for example, regarding conflicts between jurisdictions and it makes sense but then over time you have more people coming up against that law who may not be aware of it, may not understand. To me that creates need to ensure that the law is clear, predictable, well-understood and not indeed confined to those we teach with specific journalistic careers because the ability of individuals to publish, to tweet, to communicate, means that because they can do it, they are very likely to, and the more they do it, the more that these longstanding ethical and legal issues will simply affect people who hadn't thought of themselves acting in that fashion. It's funny that there is such criticism of the idea of media studies at times, you know, belittled as a Mickey Mouse subject and so on. I think now more than ever there is a need to explain the power of media, the degree to which there can be choke points and gatekeepers and the types of laws that would affect someone who decides to write a blog, to take a photograph and post it online, because it's not just those who have received formal legal training, whether it be on the job or in a journalism school, that's going to affect it. That to me is the difference, so I agree exactly with what you're saying. It's not really about no one has ever leaked documents before. It's the way in which people have the opportunity to leak, comment, republish, send to friends and so on, that's where it becomes trickier. LORD JUSTICE LEVESON I understand. MR BARR I'm going to ask you about the feedback you've received from your alumni. I think the first point of departure there is, Professor Hargreaves, your statement and the vivid example you gave of a student who reported leaving the employment of a tabloid newspaper because she'd been asked to pose as a prostitute? PROFESSOR HARGREAVES Yes. I think it's important immediately to add to your question that our evidence also says that we do not have a great cupboardful of such stories, but that is a true story and is, I think, a good example of a situation where perhaps a conscience clause or an ability for a reporter to deal with the problem in some way other than having to give up her job clearly would have been desirable. Julian, I'm sure, would make the point about trade union representation and the ability to add to your own personal weight in a situation like that. You know, it is important to say, though, that we've been in this business a long time of training journalists and we don't hear many stories of that kind, but we do hear some and we've heard of others through other channels this morning. MR BARR If I could try and explore the background to that a little bit, could you each give us some idea of the proportion of your students who you understand go on, whether immediately or eventually, to work for the tabloid press? PROFESSOR HARGREAVES I think that the correct number for Cardiff over time is probably somewhere around 1 in 10. Important in saying that to bear in mind that you're talking now about six newspapers in a world of proliferating media. So the universe of concern here is in all sorts of ways very small, even though it's also, in other aspects, very fearsome. PROFESSOR PETLEY We haven't been going anywhere near as long as Cardiff and we don't have anything like as many students to draw upon for examples for you, but I'm not aware of any of our students that have gone to work in the tabloid press. Maybe I just put them off, I don't know. LORD JUSTICE LEVESON You rather said you did. PROFESSOR PETLEY I did say it's implicit in what I suggested. I don't really paint a particularly happy picture, I think, of working in those kinds of newspapers. Other of our students go and work in the local and regional press, you know, where the NCTJ qualification is very much welcomed and recognised. A lot like me, I used to work in the magazine sector and we've also had students working on good papers like the Independent as well. We haven't had any horror stories but we haven't had as many students as Ian has had. DR MAC SITHIGH I would need to provide that information at a later stage after consulting others. MR BARR Sure. If I can come back to the isolated example, Professor Hargreaves, you gave us, I'm assuming it's not the sole example or is it the sole horror story? PROFESSOR HARGREAVES I don't think we know of other stories that are quite as unpleasant as that, but reference has been made a couple of times today to Richard Peppiatt's evidence to the Inquiry, and one of the things that you get asked a lot in you work in a journalism school is, "What am I going to do if/when X happens?" and what advice did you give in those circumstances? I think that we probably all handle it slightly differently. I don't know. The way I handle it is that I say to students that if you are working in a place where they're asking you to do things that you regard as being personally or morally unacceptable, you are working in the wrong place for you. But try and get out on your terms rather than some other way. I think that a huge amount of personal reflection goes on among young journalists about where they will be able happily to work. Actually, most journalists are really happy, really like their job. It's a great job. LORD JUSTICE LEVESON I think that's tremendously important that people say that. Again it goes back to how the whole Inquiry is being portrayed. I am not on a great witch hunt, I really am not. I am anxious to identify what has gone wrong in a business, an industry, a profession in which there is an enormous amount that goes absolutely right. I can't emphasise that enough. I recognise that, whatever people may think I recognise. PROFESSOR HARGREAVES I have a son who is a journalist and a daughter who would like to be one. This is not something that one is, you know, counselling the young against such terrible hazards. It's a fantastic thing to do. And, you know, we had a 40th anniversary celebration a little while ago in Cardiff and some of our alumni came back and talked to us, and the people who thrilled us most were the ones who graduated most recently who are working as one-person bands in local television or things like that, or working for the television arm of a fashion magazine or something. You know, there is a lot that's going right, and it's very important that the activities that have gone wrong, and those only aspects of, at half a dozen newspapers in London, it used to be seven but one of them has gone, should contaminate the debate or, worse still, lead to propositions about its future which are unwise. LORD JUSTICE LEVESON That's why it's critical to ensure that whatever one devises not only works for the press but doesn't prevent the press from working. If you follow what I'm saying. PROFESSOR HARGREAVES Yes. Perhaps we'll come to solutions design LORD JUSTICE LEVESON Yes. I'm failing again. Carry on, Mr Barr. MR BARR Not at all, sir. I'm about to put my last question on this subject and then my learned friend is going to pick up the baton. In order to get the context, in terms of the feedback you get from your students, where in the league table of concerns does ethical dilemmas feature? Is it at the top, the bottom, somewhere in the middle? PROFESSOR HARGREAVES Pretty high but not as high as: is everything going bust and will there be no jobs? That's number one. I would say that these kind of concerns sit at a significant point in the second tier. PROFESSOR PETLEY Yes, I'd agree. Our students' main concern is: will I get a job? And will I get paid halfway decently? But again, one of the things that we do, as I'm sure my two colleagues do, is we try to explain to our students why the industry is in the rather dire straits that it's in and we try to also suggest means by which that might be improved, or we try to suggest areas of media that they might go into which are not in quite such desperate straits, like broadcasting, for example, although even there there are cutbacks. I think top of our students' concerns are: will I get a decent job with decent pay? DR MAC SITHIGH As a newer lecturer, I have much less experience, but that seems to be a sensible summary of what I've heard. MR BARR Thank you. I'll pass you over now to my learned friend. Questions from MS PATRY HOSKINS MS PATRY HOSKINS Good afternoon. I think I'm going to have to turn then to the issue of solutions and obviously you're very familiar with the way that the press is regulated now. What I'm going to do is you'll have heard me this morning ask a number of questions about the PCC and about different possible solutions. I'm going to turn the questions round this time. I'm going to give you a short time each to tell us how you think press regulation should look in the future and how it might achieve a different system of regulation. I should say before I do that, I live in hope that one of you is going to argue for the current system or for less regulation. That would just be interesting. No, I can see from your nodding and your shaking that that's not going to happen. If I could just take you perhaps each in turn and give us a little view perhaps of what you think is wrong with the current system and what we could do, what Lord Justice Leveson could recommend to improve it. PROFESSOR PETLEY Right. I definitely would not maintain the Press Complaints Commission, but you asked for something positive and I think what was discussed this morning was what I would also argue for, which is, you know, coregulation or backstop regulation. I think it's very important that the regulatory process should be as independent as possible, by which I mean independent of government. And it should, I think for the most part, be in the hands of the press itself. Not by the way of present editors, which is one of the problems, I think, with the PCC. It must be a regulatory system. It mustn't be what we have now, which used to pretend it was a regulatory system but has finally woken up to the fact that it is actually no such thing, it is simply a complaints mediation body. So it must be a proper regulatory system; independent. It must be, in my view, like the Press Council, which had an interest in maintaining press freedom, that is the freedom for the press to operate in the public interest, whilst at the same time concerning itself with the wrongdoings of the press and also receiving complaints, but somewhere along the line there must be a statutory backstop, because the whole problem, as you've been told endlessly no doubt, with the present system is that if the editors and owners of the national newspapers again this is a national newspaper problem. The owners and editors of the regional press do tend to take more notice of judgments by the Press Complaints Commission, but the owners and editors of the national press don't. There must be some kind of adequate sanctioning if people break the code, the terms of the code. Again to repeat what I'm sure you've heard many times before, there's nothing wrong with the code. The problem is the code isn't obeyed when the code is broken and when the PCC does bestir itself to move to an adjudication, nothing really very much happens. So that's my thoughts. PROFESSOR HARGREAVES I start in a slightly different place. I'd start with politics, which I know is leg three of the Inquiry. MS PATRY HOSKINS Module three. PROFESSOR HARGREAVES Module three of this Inquiry. I began in journalism, I'm astonished to discover, pretty much 40 years ago, and in that period, the process by which a kind of independent governance was agreed between the government and the new owners of the Times and the Sunday Times, which was then simply disregarded with no consequence right through a long history up until last week when Alastair Campbell was here and told us all about how he had wanted Tony Blair to do something about this, but it was regarded as in the "too difficult" box, that history tells us two things. One, that the politicians must not be let anywhere near this. And two, that we need something which is then robust. Robust doesn't, I think, come with the thickness of the armour plating. It comes in the cunningness of the design. And cunningness of the design in my view needs to be just an intelligently constructed version of the Press Council. It's really not that difficult to work out what that is. That then has to be funded and governed and I favour a very limited statutory backdrop to that. I'm in a sense parti pris, but also have some experience of Ofcom, I was on the board of Ofcom from its creation, and I would make Ofcom the statutory the holder of the backdrop statutory powers, which in my view in the first instance should be relatively light in character. I don't think that we should have the press regulated by Ofcom in the way that Ofcom's content committee regulates content in broadcasting. I do think the de minimis version of it would be to have Ofcom responsible for invigilating the adherence to the code and mandate of the new Press Council, and being the body which is at arm's length from government, which has both the necessary level of independence and experience to do that and also a lot of the necessary knowledge. Some people in Ofcom spend their lives worrying about telecommunications economics, but there are others who spend their time worrying about content issues, so there is expertise there, which also would be a relatively efficient way of doing it in terms of costs. So that's roughly the design that I would recommend. LORD JUSTICE LEVESON How different is that from the present relationship that Ofcom has with the Advertising Authority? PROFESSOR HARGREAVES It could be very similar, or it could be a little different. That's you know, you hear much praise for the advertising arrangements, and they have, I think, worked pretty well. Ofcom also Ofcom is not alone as a regulator either in having operated co-regulatory relationships with a number of other subsectors in the communications zone, and perhaps one of the things that the Inquiry might think about, if it has not yet planned to think about it, is the lessons that are available not only from elsewhere in the media, the journalism regulatory world, but also the regulatory world in general, where there are all kinds of pieces of machinery which have relevant lessons. So there is a real palette for you to take from to produce the cunning design and that I think is what I think you should done. MS PATRY HOSKINS Is there anything else you would like to tell us about cunning design? I always like people who come up with cunning designs. PROFESSOR HARGREAVES It's probably better to write it down if you want more detail. That's the outline concept. LORD JUSTICE LEVESON That sounds like a wonderful idea. PROFESSOR PETLEY When we talk about backstops, the relationship between the ASA and Ofcom often comes up but I've heard quite a few people, particularly people from the legal profession, talk about the Bar Standards Council again as something which has a kind of statutory backstop somewhere deep along the line. LORD JUSTICE LEVESON You have to be a bit careful about that because of course the law permits the state in whatever emanation it is to say, "You can't do that, so you can't be a barrister or you can't be a doctor", and I think it is rather important that one doesn't go down, any question, anywhere near a route that says you can't be a journalist. That's the freedom of expression that is the right in every single one of us. PROFESSOR PETLEY Of course you're right. What we do not want is the licensing of the press. That is obviously not but some kind of backstop. LORD JUSTICE LEVESON I know some people have suggested that and I rather said, somewhat possibly too early, I didn't feel that was a sensible way to go. PROFESSOR HARGREAVES I agree that it's not. I mean, the issue that came up this morning I thought was well put this morning, the question of balancing incentives for involvement, because just as I would be very, very unhappy about a licensing regime, it's quite difficult to think of a "you must be in it" form of regulation which doesn't involve some kind of in effect licensing. So I would want to stop the cunning design short of that. I'd want this to be a place that it's so advantageous to be, that the major players would be in it. PROFESSOR PETLEY Yes. You have to want to be in it. I think that's very important. LORD JUSTICE LEVESON Carrots and sticks. MS PATRY HOSKINS Yes, please, I was coming to you. DR MAC SITHIGH I know it's already been mentioned today as well as in other parts of the Inquiry, but I think it's important to look at the model adopted for the new Press Council in Ireland. LORD JUSTICE LEVESON I was hoping you were going to talk about that. I thought you probably had some experience of it. DR MAC SITHIGH I'd suggest there are a couple of the codes between them are very, very similar. I think there are some design features I'd like to mention and then if I can, I'd say something as well about the difference between press and non-press. There are a couple of things built into the Irish Press Council that make it work. One is that it's recognised by statute but not set up by statute, so there's a list of statutory criteria not dissimilar to what Ofcom often does within the Communications Act for setting out a body must be sufficiently independent, must have processes and so on. So they're set out by statute, and the body becomes designated. The other side of that is that the use of what is effectively the statutory version in Ireland of the Reynolds defence refers specifically to membership of the Press Council. It's not required, you can demonstrate its equivalence, so it's not to say that you are barred from this defence if you do not join the council, but there's a strong incentive to do so. The other two points about the Irish Council that are significant and may not have been I think one of them certainly has been mentioned here. The first one is that there is provision for representation of the interests of journalists within the make-up. So you have independent members, you have members nominated from the press and you have a member nominated in this case by the NUJ, so you have do have a collection of interests there with an independent majority, so that's important. The other thing about the Irish Council is that it does allow, as the PCC I understand now does, membership from online-only organisations, and that I think is an important part of it. I mean perhaps the title "press" is difficult there, but in all aspects to try and open it up to others. LORD JUSTICE LEVESON And do they join? DR MAC SITHIGH There's only been one that I know of so far. The Irish Press Council the Press Council of Ireland has national newspapers, lots of regional newspapers and magazines, I think just one sports news website so far. Of course, the UK publications that publish in Ireland have joined that council, even though it is recognised by statute, even though it is a different design. So, say, the Irish Sun, the Irish Daily Mail, are all members of that council. I think that's an important point, that when the opportunity was presented to those publications, and this was part of a decade-long debate about the reform of libel law in Ireland, it didn't come out of nowhere, and the press was generally comfortable with this co-regulatory solution as an alternative to statutory regulation. The only other point I'd make there is that when we look at the PCC, we run the risk of neglecting how many types of regulation are happening within media. Although the system has improved a lot, it is still unusual that, say, if I were to take a camera and shoot something and try and sell it on the street on a DVD, to do so without classification would be a criminal offence. I think, to take the point of earlier on, that is potentially an example of overregulation and the question that has to be asked is: is there a principled reason for DVDs to be treated with one very, very strong legal mechanism, broadcasting and other newspapers and other online perhaps a mix of them? I'm not suggesting that one size would fit all, I think that's something that's thrown around occasionally by political representatives because it sounds good, but I think there's a need to evaluate is there a correct correlation between the need for regulation associated with a particular medium and the system that we have? That's the only thing I would say on the PCC, is that it's not operating and there's been a lot of tension between the PCC and the Video on Demand body which is a co-regulatory one over the regulation of AV material on a newspaper's website and Ofcom is currently trying to sort that one out, but you can see tensions like that developing, and a new PCC, if there were to be one, would have to engage with those issues. It couldn't simply say we know what the press is and we'll figure it out as we go along. Those lines of demarcation are very important to producers as well as to the wider public. MS PATRY HOSKINS This morning there was quite a lot of discussion of investigatory powers. We've not really touched on that this afternoon LORD JUSTICE LEVESON I think it's possibly worthwhile having five minutes off. MS PATRY HOSKINS Oh, of course. LORD JUSTICE LEVESON Give the shorthand writer a break. We'll just have five minutes off. Thank you. (3.25 pm) (A short break) (3.30 pm) MS PATRY HOSKINS Before the break, I had just asked you a question about the investigatory powers of the PCC and you'll have heard the discussion this morning about that. Is there anything that you wanted to add to that particular debate? PROFESSOR PETLEY Not really, because it doesn't really have any integrity it may have powers, but it doesn't do adequate investigations. That would be my point. LORD JUSTICE LEVESON But do you think it should? PROFESSOR PETLEY Yes. I think a regulatory body, whatever regulatory body in the end is finally invented, certainly should have investigatory powers, yes, I do. Definitely. MS PATRY HOSKINS And associated sanctions? PROFESSOR PETLEY And sanctions, yes, ultimately. I mean, again, it comes back to an earlier point that if this body makes judgments about specific pieces of journalism and judges them to have broken not only the law, but more importantly in this instance its code, what's the point of having these judgments unless they're backed up by sanctions? One of the sanctions that was mentioned this morning, by the way, I thought was a remarkably good one, and that was forcing newspapers which have been found to have erred against the new bodies, the code, to have adjudications about those papers published in other papers. That would hurt. MS PATRY HOSKINS Does everyone agree? PROFESSOR HARGREAVES Go ahead. DR MAC SITHIGH I think it would be important to if there were to be a move towards investigatory powers, we would want to look at the status and accountability of the PCC itself. One of the difficulties with self-regulation, and the academic literature is quite strong on this point, is that a self-regulatory system beyond which there is no appeal, which is, for example, not subject to freedom of information and so on, can be a problem, and the more responsibility you place on a self-regulatory body, the more important these issues become. So certainly would I be comfortable with the current PCC having investigatory powers? I would be deeply uncomfortable with it. If it had an appropriate structure, and again there are different degrees to which the state is involved or indeed the courts are involved, but a body that exercises powers of that nature must be accountable and the PCC does not in my view have the best of records in that way because it resisted the or purported to resist the application of the Human Rights Act to itself, is not prescribed for the FOI act even though bodies with reasonably similar functions either are or act as if they are. So I think you would want to look quite carefully at the body, and Ofcom has some record in this, as part of that designation you would build in checks and balances, because as I think was suggested this morning, these are quite serious powers and they have very serious consequences for press freedom. So you would need to do that. But with that caveat, I thought what Professor Petley as well as the speakers this morning said makes an awful lot of sense. PROFESSOR HARGREAVES I think that is exactly right, and I think I would be horrified at the sudden emergence of a sort of investigative Praetorian Guard that was stomping around Canary Wharf and South Kensington. One of the reasons that we most need a light statutory framing of this is so that the mandate is clearly set out and understood and responsibility then attributed for who does what in making it work, and the improved Press Council can play its part in that, but you'd need to be very, very careful If you think of what we heard in the open seminars and one or two other places from the Richard Desmond people, hearing the description that they gave of feeling that they were being invited into a club where somebody else had got all the best seats and was really driving it, I understood for the first time why Richard Desmond has a point. If I'd have been him, I wouldn't have wanted to join it either, and the fact that there's the financial issue as well, I'm sure that's a real he's not a man who's known to spend money lightly, but actually framing the mandate and the governance is crucial to the culture being able to grow and flourish, and what we've seen with Ofcom, which had many, many enemies when it was set up, many enemies of the idea, is that it has indeed it's grown to understand its mandate, it's adapted to changing political circumstances, but it's a strong creature in the landscape and therefore available to play a key role in all of this. PROFESSOR PETLEY I mean, the example of Carlton's programme "The Connection" was brought up this morning, you know, because they'd falsified film, basically, and Carlton was fined ?2 million, and quite rightly so, too. That could never have been done, I think, if Ofcom hadn't had the powers to investigate just exactly what was wrong with that programme. Also I think this morning was mentioned two very fine pieces of work that were done by the Press Council in the 1980s, the looking at the coverage of the Strangeways riot and also looking at the coverage of the Peter Sutcliffe affair. That again was investigative work, it was a really good piece of journalism, it was a really fascinating thing. But of course the Press Council didn't actually have the powers to compel some of the people it wanted to interview, it didn't have the powers to compel them to be interviewed, and I think any new body, providing it was properly constituted in a democratic and accountable way, as Ian has suggested, would have to have powers. You can't have people saying, "I'm sorry, I'm just not going to tell you this". MS PATRY HOSKINS I was going to move away from this topic, so if there's anything else that you'd like to say about it, this is your chance. No? All right. If I can ask Professor Hargreaves if I could turn to a couple of the studies or research projects that his department has undertaken, I'd be very grateful. For the technician, could we have a look at the document which is numbered 48531. It's page 10 of your witness statement, Professor Hargreaves. I'm just going to find it. You were asked, Professor Hargreaves, to set out a summary of any published research undertaken within the last decade which is relevant to the terms of reference for part 1 of the Inquiry and you set it out there. You say the school has carried out a range of research projects germane to the subject of journalistic practices and media ethics and you set out a number of them. I'd just like to ask you about two of the different projects, please. The first is under heading 2 "The quality and independence of British journalism" on that page, and you tell us that Professors Bob Franklin, Justin Lewis and Dr Andrew Williams "carried out the first piece of research to look systematically at the role of PR in news production and the ability of journalists to maintain journalistic independence." I don't know whether you have heard the evidence of Mr Chris Atkins to the Inquiry this week, but he was talking about the whole concept of churnalism, or the using of PR material in the writing of newspapers. I'd like you to tell me a little bit, please, about that study and what your colleagues were commissioned to do, in essence. PROFESSOR HARGREAVES Okay. Let me just give a health warning. I wasn't involved in the research. When this was being done, I wasn't even working in any large time way at the school. But I am familiar with the work. This was a study of the way that journalists work. It says here conducted in collaboration with the Rowntree Foundation and the Guardian, and it was I think used in Nick Davies' book, Flat Earth News. The main thing that it showed was that although in the period studied there hadn't been a particularly notable change in the number of journalists, there had been a particularly notable change in the amount of work that journalists had to do because of the emergence of online and the changes in the way that journalism is organised, and the figure that's put on that is that there had been an increase there by a factor of three in the, if you like, if you were looking at it from an economic point of view, in the productivity of the journalists concerned, but that this has got consequences for the quality and level of ambition of what journalists can do. MS PATRY HOSKINS Can I ask you to pause there just for a moment. It's important to point out that the study was drawn from the top end of British journalism, Guardian, Independent, Mail, Telegraph, Times, BBC and ITV News. This was not a study focusing on the red top or tabloid end of the market, so those principles apply equally to the top end of the market? PROFESSOR HARGREAVES That's what this piece of research found. This is not the only piece of research that's been done in the relationship between press release writing and media production, and there's a reasonably well-established body of data about that. You only need to talk to any journalist and you know that is part of what working life is for many journalists most days, if not most journalists most days. But that doesn't mean to say that there aren't other journalists who are working in different conditions, because that's true also. MS PATRY HOSKINS So the same number of journalists, three times as much work. What sort of pressures did that lead to? What did the study find? PROFESSOR HARGREAVES Well, it found that there was less time given to fact-checking, and less opportunity for journalists to use their own initiative and, as it were, take optional courses. If you have so much on your plate the whole time, that you don't have time to go and look for more interesting dishes, and therefore certainly the way that Nick Davies interprets this, and he uses the word "churnalism", is that this has led to a significant diminution in the quality of British journalism. I have to say I have some reservations about that theory, but if we're just talking about this research, I certainly don't need to air those for you. MS PATRY HOSKINS Of course it was about the role of PR in news production. I think what your witness statement goes on to say here is that the finding was that journalists often heavily relied on public relations and press agencies for news. Is that right, that's what the study found? PROFESSOR HARGREAVES Yes. That's a bit like saying the solar system relies on the sun to come out. I mean, there's nothing new about press releases and PR. But what is undoubtedly the case is that there has been increased pressure on journalists, the amount of stuff they have to get through, the number of stories they do a day. That's what this nails as a piece of research. LORD JUSTICE LEVESON The real point is this, this is the only point, isn't it, that there isn't the same time to check the story and to make sure that it hasn't been presented in an overfavourable light? PROFESSOR HARGREAVES Yes, that is the implication of it. And this is where, you know, I just sort of contest some of this work because I think it's you know, anybody people sitting in this room now at all these screens, we all work at an incredibly faster speed than we used to do around the stuff, the information, the data that we have to manage as part of our work. So I'm not contesting our own research; I'm simply you know, I'm standing back from it a little bit because I don't personally subscribe to many of the large theories about all journalism is no good these days, which sometimes this kind of material is used to go in that direction, and that's not what I see happening in the world. MS PATRY HOSKINS All right. The second piece of research I wanted to ask you about is over the page, referred to over the page two pages on, page 12 of your witness statement. It's under the heading "Examples of positive and negative journalistic practises: science and religion". If you look at (iv) under that heading, you explain that the school has undertaken research on the British press coverage of Islam and Muslims, which suggest the quality of tabloid news practices in this area was often poor. Can you tell us about that research? Again I understand that the caveat will probably be that you didn't have much involvement with the actual research or PROFESSOR HARGREAVES No, that's true, although I have been involved in work myself on Islamophobia. This was a study of content and of the way that a story emerged into the news with one apparent set of meanings and then, as it worked its way through the sort of gut of the media's digestive system, it came out looking and sounding quite a bit different. I mean one example of that was a speech given in 2007 by Muhammad Abdul Bari, who was at the time head of the Muslim Council of Great Britain, and he gave a speech in which he referred to the 1930s and the rise of anti-Semitism and a period in which people's minds were poisoned. This got reported one way at first, but then it became, and these are actual headlines from actual newspapers, it became "Muslim fears Nazi UK" and then that got into "Fury as Muslim brands Britain Nazi", with all of this happening I think at the time around Remembrance Sunday. It's an example of how the reporting of a speech with a pretty clear intention behind it as a speech, if you like bad faith is applied to it as it traverses through the media and it's turned into something which is an expression of concern is turned into a stick to beat the Muslim community which is now throwing up people who think that Britain is full of Nazis. That's the point of that particular story, and this piece of research followed a number of discourses of that kind and found that pattern recurring again and again. LORD JUSTICE LEVESON The point there is that that's just as good an example of the presentation of stories about which you would have concern as some of the examples that were identified by those who gave evidence to the Inquiry? PROFESSOR HARGREAVES Absolutely so. You might even this would be a matter of opinion, clearly. You might even say this is a type of example which causes more concern. This is not something which is an attack on an individual. This is something which has very wide political and social and cultural significance and which can be part of prompting civil disorder or tensions in society that would otherwise not be so provoked. MS PATRY HOSKINS Sir, I'm not going to ask Professor Hargreaves any more about that study. It's at tab 10 of the bundle that you have, for your note. LORD JUSTICE LEVESON Yes. MS PATRY HOSKINS I'm going to hand back to Mr Barr for some further questions. LORD JUSTICE LEVESON Did you want to add something? PROFESSOR PETLEY Just briefly. I've actually published some of this research in a book which I co-edited called "Pointing the finger: Islam and Muslims in the British media" because I was very impressed with this research. The whole book really is about the representation of Islam and Muslims, it's more about the British press and the British media as a whole, and the picture which emerges I'm afraid is very, very much along the lines throughout the whole book of the rather grim picture that Ian has painted now, and one of the things that we did look at was, you know, mythological stories. I'm sure you'll all be familiar with the story that Christmas has been banned because it offends Muslims and piggy banks have been banned because it offends Muslims and the terms BC and AD have been banned, you know. In fact, we got two Guardian journalists, Hugh Muir and Laura Smith, to actually investigate these stories and of course they turned out not just to be a bit exaggerated or a bit distorted, but completely and utterly untrue. I do think it's quite shocking for people sometimes to discover that stories that newspapers publish are just quite simply not true, and of course, as you know, and Ian's just illustrated it, stories very easily bounce from one newspaper to another and then they become embroidered in a kind of process of Chinese whispers. I'd be very happy to give the Inquiry a copy of this book, if you'd like it, because there's a great deal of empirical evidence and it also comes back to something which Angela mentioned this morning. Again, Hugh and Laura, who were major contributors to this book, interviewed a whole number of Muslim journalists working on newspapers, and again it was very, very interesting, not one of those journalists wanted to be identified. Not one. Which says an awful lot, I think, about the climate LORD JUSTICE LEVESON For various reasons it probably is one of the ever-burgeoning group of books that I ought to read. PROFESSOR PETLEY Well, I'll happily give you a copy of it. MS PATRY HOSKINS I think we'd be very grateful for that. Thank you very much. PROFESSOR PETLEY I should just say, by the way, that the book does actually end with some recipes for how things might be made better, so the book isn't just a series of complaints and criticisms, and that particular chapter might be of interest to the Inquiry because we do actually talk about how to make journalism better. And because a lot of the book has been written by professional journalists, or one-time journalists, I think it carries a fair amount of weight. MS PATRY HOSKINS Thank you very much indeed. Further questions from MR BARR MR BARR I'd like to resume by taking some of the concepts Professor Petley sets out in his statement and exploring them further with you all. Professor Petley, you start by reminding us that we must be careful not to conflate the idea of freedom of expression with freedom of the press. Would you like to attempt in a nutshell to explain to us the vital difference between those two concepts? PROFESSOR PETLEY I will do my best. Obviously one goes back when talking about freedom of expression to Article 10 of the European Convention on Human Rights. There we have a kind of statutory right to freedom of expression. Actually, a relatively recent one, really, so everybody has that right. The question I think really is not: does the press have more rights or less rights than anybody else? We all have that right. My argument would be that with the right to exercise what you might call commercial speech comes certain obligations which I don't think are really there with the right to exercise individual speech. I would have thought that the only obligation, really, that comes to an individual when he or she is exercising that right to free speech is to make quite sure that you don't stop anybody else exercising their right, but it does seem to me that when you get commercial speech by powerful organisations which have big consequences, much, much bigger consequences than individual speech has, then certain responsibilities and duties come with that. I've drawn quite explicitly in my witness statement on the work of Professor Onora O'Neill, and in particular her Reith Lecture on trust in the early part of this millennium. I don't know whether she's somebody who you might be inviting to speak to you, but I certainly owe her a large debt of gratitude, I think, because she certainly helped me to develop my ideas around this notion of, you know, the responsibilities which come with the ability to exercise commercial speech. MR BARR Am I understanding correctly that the heart of the distinction is the power and influence that comes with the ability to communicate to a very large audience? PROFESSOR PETLEY Absolutely. MR BARR And to the inequality of voice? PROFESSOR PETLEY Yes. MR BARR Is there anything that either of you would like to add or qualify about that? PROFESSOR HARGREAVES I'm certainly a member of the Onora O'Neill fan club, and she gave a lecture a few days ago which developed her line of thinking, and it is a very powerful antidote to an oversimplistic freedom of the press argument. Where it takes you in terms of the practicalities of the kind of mission that the Inquiry has before it I think is to be unafraid of the big scary headlines here. It's easy to try I to boss this debate by saying, "You can't possibly do anything like that because of freedom of the press and you can't possibly do anything like that for the opposite set of reasons", whereas actually there is a perfectly reasonable design on which actually most people probably can agree it simply requires, you know, the industry and the skill to do it and the political circumstances in which it can be taken up, and it's the latter that has been missing through all of my working life in journalism. DR MAC SITHIGH A clear point has been made. I have not read Professor Petley's contribution on this but I've seen the arguments he's made in the past. LORD JUSTICE LEVESON His statement is worth reading. DR MAC SITHIGH I'm looking forward to it. My students will be reading it too, so those who are watching are now put on notice. PROFESSOR PETLEY I'm putting it on the Inforrm blog so that other people can read it too, if that's okay with the Inquiry. LORD JUSTICE LEVESON Of course it is. I'm afraid we'll also publish it. It provided, if I might say so, a window, particularly a historical window, which I had not previously appreciated, and I'm pleased for the opportunity to say that. PROFESSOR PETLEY Thank you very much. DR MAC SITHIGH I think the Inquiry will be going on good lines here. The European Court of Justice has had call to deal with this on a number of occasions, even around something very topical for this investigation, the status of the data protection directive, which talks about journalistic purposes, and it had to investigate in quite some detail the difference between the rights of the press and the rights of the individual to communicate and to speak freely, and I think that's really an important thing, that of course many of us probably have said free press today, but there's strong legal authority that that is something that does not belong to the press and that the focus should be on achieving abilities for individuals to communicate and to express, and that would be paramount. That will benefit the press, but the benefit to the press is not the only objective. That's something that probably hasn't had enough circulation in the public debate in the UK, but I would commend Professor Petley's work and hope that it does. MR BARR And does the distinction show us the space that there is to regulate the press without necessarily impinging upon the fundamental right of freedom of expression? PROFESSOR PETLEY Yes, because I think one of the points which I make in this, and it's a point I make to my students when I'm teaching them, is that we have to think about regulation not only in negative terms but in positive terms. Now, there was a good deal of discussion this morning about the principles of public service broadcasting, and how they in fact have helped to maintain and indeed protect good journalism, both within the commercial broadcasting system and the BBC. Because these are various forms of thou shalts. Negative regulation is thou shalt not, but positive forms of regulation are thou shalts. So regulating into the system things like diversity, accountability, accessibility, accessibility, to use Onora O'Neill's phrase. These are really really important things, which I think people actually have a right to. I talk about communicative rights in my submission to the Inquiry, and this I think is really, really important. So to me, none of these things are proscriptions; rather they're prescriptions. They're encouragements to do better, and in particular they're encouragements to do what the media according to, you know, classical fourth estate theory, et cetera, are supposed to do in a democracy. You know, this is not some kind of wonderful invention by me. This actually is kind of going back in many ways to what the principles of journalism have for a long time proclaimed themselves as, both in the particularly in the US, but to some extent in the UK as well, saying, look, you say this is what you're doing, you say you're the fourth estate, you say that you're a watchdog, you say that you're making power accountable to people, but actually you're not living up to these ideals. In particular, one of the points I make is to argue that it's all very well to talk about journalism speaking truth to power, but journalism very rarely acknowledges its own power, acknowledges that it is a really, really, really important power in the land. To go back to a point which Ian made just now, one of the reasons why politicians have been so wary, I think, to take on questions about the regulation of the press, both in a positive sense and a negative sense, is because they're actually terrified of the press. But this is not the press being a watchdog. This is the press being an attack dog, and there's a very, very big difference between the two. Everybody would agree with the importance of the press as a watchdog, keeping watch over corporate power and state power, political power, but also, as Nick Davies and David Leigh have shown, quite brilliantly, in my view, this is a fantastic example of journalism speaking truth to power, but the power here is not the power of the state, it's the power of the Murdoch empire, in this particular instance. LORD JUSTICE LEVESON Or the power of the press generally, to be fair. I mean PROFESSOR PETLEY Yes. LORD JUSTICE LEVESON I understand why we got here, but the whole question is: who is going to take on abuse of power in the press? Because nobody does. If it is abused. PROFESSOR PETLEY It is your opening remark, isn't it, quis custodiet custodians. LORD JUSTICE LEVESON Yes, there it is, it's come back to haunt me. PROFESSOR PETLEY You're absolutely right. But it would seem to me that much of the press, you know, the usual excellent papers like the Independent and the Guardian and so on, do exercise their power responsibly, they do actually have quite a kind of reflexive attitude to what it is they do. I quote in my submission from the Guardian's David Walker, who is one of those journalists who does acknowledge the power of the press, or the Observer's Will Hutton. But when you go out of the upmarket papers, it seems to me that the attitude of the red tops and the attitude of the Mail and the Express towards government are completely and totally different. You get a much more bullying aspect there. The other evening when Lord Patten introduced Onora O'Neill at the Oxford lecture, he talked about that in a very interesting way, saying that essentially the Daily Mail seemed to have a kind of stranglehold over the way in which drugs policy has developed in this country, and someone like the Justice Secretary, Kenneth Clarke, has also talked about the way in which large sections of the press have kind of bullied politicians into enacting more and more illiberal penal policies, probably against their better judgment and their better sense. But the problem here really is not so much a problem to do with the attack doggery of the press. The real problem, surely, is that politicians of both main political parties have allowed this to happen, and I think that's the point that Ian ended up on before I started. LORD JUSTICE LEVESON You might talk yourself back into module 3, unless you're careful. PROFESSOR PETLEY I'm very happy to do so. MR BARR Perhaps I could ask Professor Hargreaves to pick that up by putting it in this way. I'm sensing that what's being said is power should bring with it responsibility, that should manifest itself not just in negative obligations but also in positive obligations. Is that a proposition with which you agree? PROFESSOR HARGREAVES Yes, it is a proposition with which I agree. The only qualification I would put on the back of what Julian just said so eloquently is that there will be occasions when the newspapers that you listed are saying what they're saying and doing what they're doing because they have tapped into and understand public feeling or something which politicians, for another set of reasons, are not attending to. It's not right to sort of construct the idea of the Mail, the Express, the Mirror and the Sun as some kind of ill-motivated beast. You know, they are also looking for a relationship with their audience and trying to give voice to what they think their readers think and are concerned with, and that's a very great skill in its own right, but it does come with it does come with, absolutely, a set of responsibilities, and it can be bullying. But nice liberal people can be bullies as well. Even broadsheet newspapers. My word, I've known the odd one. MR BARR If I can pick that up and expand it in my question to Dr Mac Sithigh. The ability to communicate with the masses is now, through the Internet, something which lots of people can do without buying a newspaper in order to do it. Do you agree that with the power of mass communication should come positive responsibilities? And if so, how do we translate that into the Internet? DR MAC SITHIGH I agree that positive responsibilities and positive regulation is very important. In the case of broadcasting, it's been a very significant part of the regulatory mix, but it's not just about saying what you can't do, but what you can do. Or encouraging you to what you should do. When you go online, the entry barriers are lower. You don't need to invest in a printing press or have access to limited spectrum, so by definition there is a lot of speech out there. Where I would draw the line is saying that simply having lots of opportunities to speak, that means we're out of the woods; I don't think that's the case. If you look at online traffic, there are some large UK newspapers that are also very significant players online. There are also other intermediaries, search engines and web hosts, who will influence the way in which the user gets to see what's going on, so although everybody can produce, there are a lot of voices, so there are other centres of power which may not be newspapers or broadcasters, but are important and active online. But there are the benefit of the online media is something that was touched on this morning around the right of reply, which is that in some online discussion areas, the right of reply is part of the culture. It is built into the nature of online communications that you can respond to it. I would favour a right of reply for the press. It works in a number of other European states, it's important in terms of broadcasting. I think where it complements what my two colleagues on the panel have said, it's about promoting more speech in response to speech that you can then promote further opportunities to speak. The last thing I'd say is that online media may still need encouragement in terms of allowing a diverse range of views to be aired, of enabling non-commercial approaches to be taken. Public service broadcasters, not just in the UK but elsewhere, have had trouble going online because it is difficult to translate a public service mindset into an online environment because you don't have the old trade-off of in response to a limited spectrum you will represent all the nations or all the regions equally. But when broadcasters and newspapers go online, they can add to the type of conversation that is taking place, but there may still also be a role for the state, not simply in the only time we hear talk of law on the Internet being about what should be banned, but about creating communicative spaces online, including potentially financial support where necessary because we have seen a crisis in the local media where local newspapers are in trouble, where the BBC on competition grounds has had difficulty going into local video, and there is a need to recognise that we can't simply rely on the Internet to come along and solve all our problems. That would be my conclusion on that. There are great opportunities for speech, for criticism, for investigation and so on online, but just pointing towards the Internet won't do it. MR BARR If I rewind just a little bit in that answer and ask you to tell us a little bit more about where power rests, so where the power rests is where one might think about imposing the duties. Internet service providers presumably the most powerful part of the Internet? DR MAC SITHIGH Well, it's important to break down the Internet service providers as, for example, under electronic commerce law where you distinguish between what's called a mere conduit, someone who provides a connection, and a host, someone who provides the opportunity to display the material. That's an important distinction because the degree of liability might be less for the conduit than for the host. LORD JUSTICE LEVESON That's a search engine? DR MAC SITHIGH Well, by conduit I would refer to an internet service provider, BT, Virgin, and so on. A host, examples would be Facebook, YouTube, et cetera. Search engines would be a particular type of host. But they all have different parts to play. What I would say around a host is that you need to find a method that if you're going to make the host responsible for something, that does not make them the new arbiter of right and wrong. This is a major concern around private regulation, that if we say that it is up to YouTube to take things down without the proper process in place, then what stays up is not what should stay up, but those who have the legal strength to argue back, or indeed you have a problem of smaller hosts taking down material when there might actually be a legal case to keep it up, but they are afraid of the cost of the legal action and so on. This has been a big part of the debates on libel reform and there have been a number of suggestions around rapid responses, mediation, temporary take down, put back up again, and they are important because if we say that online is an opportunity to speak but then we hand that control over, we may have a future inquiry where rather than talking about the power of the editor of the Daily Mail and the Sun, we are talking about the powers of Internet intermediaries. So there is a danger there. But certainly they can have a part to play in regulation. We see this, for example, with ISPs around the their obligations to carry your traffic. The old-fashioned idea of a common carrier, you take anyone who comes to you in return for a certain degree of protection from legal action. To me, those two issues go very closely together. If you want immunity, then there may be public service obligations associated with that. MR BARR Thank you. I'm going to move in Professor Petley's statement to the next concept that you deal with, which is you set up the proposition free enterprise is a prerequisite of a free press, and then proceed to demolish it. PROFESSOR PETLEY Yes. MR BARR I would like to ask you a little bit more about that. PROFESSOR PETLEY Yes. MR BARR Is it right that in your opinion there's a myth that free enterprise is required in order to get a free press? PROFESSOR PETLEY Well, in my view, free enterprise, that it an unregulated free market, does not lead to a free press in the fullest sense of the word. MR BARR Is that because there's an inequality of power that emerges? PROFESSOR PETLEY Yes. There's an inequality of power. By the way, both between newspapers themselves, but also, of course, between newspapers and their readers and also between newspapers and members of the wider society. So my argument really is that when press proprietors and press editors argue in favour of press freedom, which is of course something we're all in favour of, press freedom is very much kind of hurrah words, in fact what they're really doing is they're arguing for a property right. They're really saying, "Look, it's my newspaper and I will do with it as I damn well please." It seems to me that in a democracy, that really isn't good enough. There have to be certain kinds of responsibilities and duties laid upon newspapers and I would argue, and I argued in that submission, that one of the most important ones is the one which is actually enshrined in the very first clause of the Press Complaints Commission Code, which is the duty to be accurate. I don't want to go on too much about the Press Complaints Commission, but it is an absolute fact that the vast majority of complaints which the PCC receive are not about privacy at all. That's something in the region of 20 per cent. The vast amount of complaints that the PCC receive, about 70 per cent, are about accuracy. My point here would be if people are not able to receive accurate information about things of public interest, how are they supposed to function as citizens of a democracy? So what's happening, in fact, is that press proprietors and there's nothing particularly new about this, by the way have traditionally used their newspapers to propagate either their own views or views which are in one way or another convenient and useful to them. There is nothing new about complaints about press proprietors because one of the very, very few British politicians ever to stand up to the press in this country was a Conservative Prime Minister standing up to a largely Conservative press and that was Stanley Baldwin, and that of course is where that expression, you know, what the press barons want is the prerogative of the harlot throughout the ages, power without responsibility and that's largely what they've got. Those lines I believe were written by Kipling for Baldwin, who was his cousin. That, I thinks is the title of the book by James Curran and Jean Seaton, Power Without Responsibility, which in my view, at least, remains the best book on the current state of the British media. It's a very, very good book in terms of the empirical detail which is in it, but it's also, as the title suggests, a critical book as well. I think what's needed here in journalism studies and media studies generally is a really good mixture of detailed empirical research like the kind that's carried out at Cardiff that we've heard about, but also which has some kind of reputable theoretical basis to it. The basis of my own work would be very much in kind of critical political economy, and that's the perspective that this comes at you from. But to return to the question, I don't think that really a conception of press freedom, which is in the end merely a property right, is one that I personally would want to defend. I mean, the organisation which I chair is called the Campaign for Press and Broadcasting Freedom, but that was really founded in the 1970s, partly by mainly, in fact, by journalists and print workers who were concerned that their freedom to operate properly as journalists and print workers was being increasingly constrained and narrowed by press proprietors, but particularly Rupert Murdoch. MR BARR Thank you. Perhaps I can ask Professor Hargreaves: do you agree that free enterprise is a prerequisite of a free press? Would you align yourself with Professor Petley? PROFESSOR HARGREAVES When I heard your question, not having had the opportunity to read Professor Petley's text, I would have read your question, unadorned by his answer, as a question about whether or not you were asking me whether we would have a better press if it were all publicly owned in the way that our dominant broadcaster is publicly funded, and my answer to that would be emphatically no. What I believe that we want is a diverse news media ecology, which includes these different sorts of animals now mightily enhanced by the availability of all of these strange new players creeping out of the blogosphere and so on, and that is our best defence against all of this going wrong again. You know, I connect that back to the theme which I've laid some emphasis on, which is making sure that as part of the regulatory apparatus we're also ensuring that there is not excessive concentration of power within this over-arching power structure. I would be worried about excessive concentration of power if it were all concentrated in the hands of the BBC, which the Director General who I worked for at the BBC used to go around saying was the best organisation created anywhere in the world in the 20th century, which was a large claim, but not necessarily a completely absurd one. PROFESSOR PETLEY I'm with you. I think that the problem with the so-called free market, which I don't believe is a free market, is that it does precisely, if not properly regulated in the public interest, lead to concentration, and that is the history, unfortunately, of LORD JUSTICE LEVESON But this isn't new. PROFESSOR PETLEY No. LORD JUSTICE LEVESON This has been going back 50 years. PROFESSOR PETLEY Indeed. PROFESSOR HARGREAVES The problems that you've been asked to steer your way through, it's very, very important to keep remembering that they're half a century old in their current form. There's a version of them before that. LORD JUSTICE LEVESON This is one of the points that Professor Petley made, the American presidents. PROFESSOR PETLEY I think what has happened is that these are kind of vegetative processes which have developed over a long time. You can almost argue that they've developed for the whole lifetime of the modern British press, which we can really date to the end of the 19th century, and again here I would refer you to the work of people like James Curran. And of course there have, as I'm sure you're aware, been attempts to examine the British press. We've had three Royal Commissions on the press, which were mentioned this morning, and we've also had the Colcutt committees as well. LORD JUSTICE LEVESON Twice. PROFESSOR PETLEY Twice, exactly. But really, nothing much happened as a result of that. In the end, the last Royal Commission kind of was more critical than the first two and then rather kind of held up its hands and said, "Oh, woe is us, we can't really do much about this". Then of course Colcutt 2 comes up with something which nobody who believes in press freedom could possibly agree with, namely this kind of court of the Star Chamber, basically. Then what happens is the Press Council is actually in the end replaced with a body which had even a narrower remit than the Press Council did, which is an extraordinary position to have reached, in my view. LORD JUSTICE LEVESON Indeed. At one of the seminars somebody said that what was required was less regulation, not more. I think somebody said that. PROFESSOR HARGREAVES Yes, less regulation not more is a good idea if you're a skilled surgeon and know which are the decaying body parts in the regulatory apparatus. Yes, get rid of those. But regulatory systems have constantly they're organic things. They have to keep changing and they are healthy because I'll now go gardening in the metaphor they need to be pruned and shaped in the right way. And this particular plant was cut in the wrong places and at the wrong time in the wrong way. PROFESSOR PETLEY So you really do have a chance now to put right at least two Royal Commissions and both Colcutts. PROFESSOR HARGREAVES Think of yourself as the head gardener of the LORD JUSTICE LEVESON I cannot tell you how pleased I am when very distinguished people who have spent their lives thinking about issues such as those that we've been debating come along and encourage me to seize the moment and do something that is going to solve all the problems that everybody has been talking about for so long. That gives me tremendous confidence. PROFESSOR PETLEY Good. And we're happy to help. MR BARR I may immediately have to take up that offer. Fascinating though it would be to continue going through the various concepts introduced in your paper, Professor Petley, I think we only have time for one more, which I'll introduce in a moment, but then we'll have to satisfy ourselves with reading and re-reading your paper and those of your colleagues and if it may be that you can help us with matters such as the public interest, which I put to your colleagues this morning in writing. Against that, I'll just introduce the last concept that I'd like to deal with this afternoon. You tell us about the concept of market censorship and where the market, in your opinion, is taking the press to is a situation where it distorts content rather than giving rise to freedom of expression in a broad sense. Is that why there is perhaps an issue between getting a lot in the press of what the public is interested in, because that is what they pay for, and there being a temptation to let that override what is actually in the public interest? PROFESSOR PETLEY Yes. Well, of course, as we said this morning there is an enormous difference between what sections of the public are interested in and what is in the public interest, and I think it's important to just to recap a little bit of what was said this morning, that there are plenty of interesting and workable definitions of the public interest. The Press Complaints Commission likes to suggest it's a very, very difficult thing to define, the public interest. I don't think it actually is. If you look at the BBC editorial guidelines, as were mentioned this morning, I think those are a very good encapsulation of the public interest, but to come back to your question, how does you know, how does the market operate as a censor, well, you know, if in the so-called free market the big fish eat the little fish, and you get an ever greater process of concentration, there will just be less and less and less newspapers. We've seen sadly, you know, over the years, a truly remarkable decimation of newspapers. What happens now, of course, is you have really really intense competition for readers at the red top end of the market and also in the mid-market segment between the Mail and Express. If one was to believe the kind of free market theorists, what we'd have here is very different newspapers competing with one another and against each other. What seems to happen is they all seem to compete on the same ground. They all seem to compete with the same kind of material for presumably the same kinds of readers or the same range of interests in that range of readers. So, for example, when Rupert Murdoch bought the Sun and turned it into a very, very different newspaper from what it had been before, the Daily Mirror, rather than maintaining its previous, in my view, excellent kind of example of popular journalism, instead starts to try to compete with the Sun on its own terms. So the range of material within the press, at those two levels, the mid-market and the red top, seems to become narrowed by competition, not broadened by competition. So what the free market theorists argue should happen doesn't seem to happen. You have more diversity at the top end of the market. You know, a paper like the Telegraph, which is quite significantly different from a paper like the Independent, which is again different from the Guardian, I would argue. You have market differentiation there, but part of the reason for that is that, oddly enough, broadsheet newspapers are not so dependent upon readers for their revenue because the broadsheet newspapers can attract much, much more advertising revenue than the red tops and the mid-market tabloids do. So you don't have that kind of desperate competition for readers, which as I say, unfortunately doesn't seem to broaden the range of papers at the mid-market and red top end, it seems to narrow the range of news everyone seems to be competing for the same readers and for the same interests in those readers, and that of course again is the section of the market which is you know, where the journalism has occurred which has brought about this Inquiry. MR BARR Perhaps I could ask Professor Hargreaves: is the market operating as a censor and one which pushes journalists towards unethical techniques? PROFESSOR HARGREAVES No, I don't buy that argument. I think that in the UK we have both a strikingly mixed economy of news provision, and have had since the dawn of broadcasting, and emphatically, so no. We also have a thickly populated newspaper space at the national level, more thickly populated than in most other countries, and it's thickly populated by newspapers which on the whole, at the top end of the market, lose lots of money, but are owned by people who don't seem to mind that, and at the end of the market, where they're expected to deliver a commercial return, they compete very hard against each other. Of course it's true that competition has undesirable side effects as well as positive side effects, but if you ask me to choose between the market structure that we have for the news media in the UK and one which was all administered by grants from a central public news commission sitting in London with branches in Cardiff, Edinburgh and Belfast, I know which I would choose. MR BARR I think the Ministry of Truth theory is probably not one that we're going to be detained by for very long. Thank you for that. And could I ask Dr Mac Sithigh if you could help us from the Internet perspective where presumably market forces are very different to the old media, is there any market-driven censorship of media news? DR MAC SITHIGH I think market censorship is going to be present in any commercial space. It's unavoidable. It is a situation where you will have web posts and they act in a very different fashion. Some will pay very strong attention to what their users say, some will pay very strong attention to what their advertisers say, others might do what their lawyers say, which might be most advisable. I'm not going to make that claim today. LORD JUSTICE LEVESON Very wise. DR MAC SITHIGH I think the issue is the impact of the Internet on other business models for the media, that where other formats have been unsupported and where advertising is moving from, say, the classified section of a newspaper to online, but without the associated potential investment in journalism, I think that's a structural problem because then you have to consider whether that advertising which used to support aspects of the media, what it is supporting and whether that creates a gap in it. But, I mean, my work on intermediary censorship I think demonstrates that there are plenty of examples where decisions are made which are not in the best interests of freedom of expression by online intermediaries and sometimes that's a degree of prudence and you don't want to be too critical of those who are trying to protect their own role in investment, but if the question is: what delivers the greatest degree of individual freedom of expression, then there is a need to have clear terms and conditions for users, methods of resolution that do not involve long trips to the courts, expectations that are community wide. So one of the successful online media, particularly those that have user engagement, have a sense that people respect one another's views, that they do not try and embroil web posts in legal difficulty, that they do not appropriate the work of others and so on. When you see the Internet at its best, it's where that culture is part of the online space. That is not universal. The more people go online, I think some of those cultural ideas become challenged in different ways, but finding ways to use that as part of what we talk about, freedom of expression, there are good examples of things happening online and of the ability to communicate being opened up, and it's important not to lose sight of that. But yes, market censorship can and does exist online as it does in the press. LORD JUSTICE LEVESON But they also interact, don't they, because it's the use of advertising on the Internet that is strangling the regional press because it's removing the advertising revenue and the classifieds from them, which therefore robs the local community of that vital local news input which reported on its daily courts or its daily local authorities or what's happening in an area, and that's a matter which may be outside my terms of reference, but is clearly of real significance. PROFESSOR PETLEY Absolutely. But that's partly because the newspaper publishers in localities and in the regions were very, very slow in investing in online versions of their newspapers, or adequate online versions of their newspapers, so the advertising which might have slipped out of the hard copy could have slipped into the online part of the newspaper but in fact slipped out of the newspaper's grasp altogether. So there's been very serious, I would say, underinvestment in the local press by those who owned it, and whereas the national press, the Mail and the Guardian in particular, have done brilliantly in my view in different ways online, the local press owners were very, very remiss indeed, in my view. MR BARR Thank you very much, gentlemen, for all your contributions. You're warmly invited to make further submissions in writing. Unless any of you think it's a matter of such burning importance that it needs to be raised orally now, I won't ask you any more questions. LORD JUSTICE LEVESON If there is anything that you feel that you've come along wanting to say that you've not had the opportunity to say, please say it. PROFESSOR PETLEY I think there's just one thing that Daithi really said. The answer to speech that we don't like is more speech that we do like. I'm a great believer in that. And that one of the ways to mend the markets, since I've talked about market censorship, is to, you know, ensure that maybe there are subsidies for smaller distribution publications to stop the kind of distribution stranglehold that people like WH Smiths now occupy. It's really, really important, I think, that we do everything that we can to encourage more speech rather than less speech, that's why I'm a very, very strong defender of what was discussed this morning at great length, namely the right of reply. I think if there's one thing that could make an enormous difference to journalistic standards within the British press, and particularly the parts of the press which have caused this Inquiry to come about, it is a statutory right of reply. LORD JUSTICE LEVESON Thank you. Do either of you other gentlemen? No? DR MAC SITHIGH The only outstanding point I would have, and I think I touched on it when we were talking about education, is not just from teaching but from preparing for appearing before you is the complexity of the law that to those of us who teach and research it on a daily basis, as well as many of those in the room who practice it, it's extremely difficult. The differences between platforms, between different types of public interest defences and so on, has reached the stage where I would see a major contribution that could be made would be clarifying the differences between forms of regulation and the types of defences that operate in the interests of journalism and of freedom of expression. They are difficult for the citizen to understand. They're even difficult for journalists and lawyers who are at the sharp edge of it to understand, and I hope that the Inquiry will be able to assist in not just describing the law, but also proposing ways that it can be easier to communicate to our students and to others. LORD JUSTICE LEVESON As I have been trying to do that in relation to the criminal law for as long as I can remember, that's not an entirely easy exercise. DR MAC SITHIGH Indeed, I appreciate that. LORD JUSTICE LEVESON Okay. Thank you all very much and I hope you heard what I said to the Professors who came this morning. I'm very grateful to you for the enormous amount of work that you put into this. I do hope that you will continue to monitor what I am doing and make such contribution as you feel will assist to get to a solution which will work for everybody. Thank you very much indeed. Right. MR BARR Sir, I think that concludes our business for today. Tomorrow we're going to hear from Mr Thomas, and as you heard earlier, to deal with the other matter at a convenient time. LORD JUSTICE LEVESON Thank you very much indeed. Thank you. (4.41 pm)


Gave a statement at the hearing on 08 December 2011 (PM) ; and submitted 26 pieces of evidence
Gave a statement at the hearing on 08 December 2011 (PM) ; and submitted 11 pieces of evidence
Gave a statement at the hearing on 08 December 2011 (PM) ; and submitted 1 pieces of evidence


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