Leveson Inquiry

Morning Hearing on 26 January 2012

David John Collins , Christopher Graham and Daphne Keller gave statements at this hearing

Hearing Transcript

(10.00 am) LORD JUSTICE LEVESON Mr Jay, I have noticed in some newspapers this morning that it is suggested that I have reserved my decision in relation to core participant status for a number of individuals. I did not think that I had done that. I thought I had given rulings. Is there any lack of clarity about that? MR JAY It was certainly my understanding. The applications were rejected. LORD JUSTICE LEVESON The individual applications? MR JAY Yes. LORD JUSTICE LEVESON That was my intention, but if there is any doubt about it, doubtless it will be brought to my attention. Thank you. MR JAY Sir, there is the issue which was left open yesterday of any possible appeal against the Divisional Court ruling. LORD JUSTICE LEVESON Yes. Mr Caplan, can you assist? MR CAPLAN I can, sir, and can I confirm that it is not the intention of Associated Newspapers to take the matter any further. LORD JUSTICE LEVESON Thank you very much. In those circumstances, I will direct that the application made by the National Union of Journalists should be circulated to core participants under the usual confidentiality agreement, and submissions in writing about the direction that I should take should be made by close of business on Monday. I will then rule during the course of next week in writing. I would have thought that it's unlikely to require oral exposition, but if I take a different view, I will make that clear. I am led to believe that there may be some journalists who were not prepared even to submit statements until they were aware of the decision of the Divisional Court and the conclusion of that challenge. If there are any further statements, they will be circulated in the normal way, with the usual confidentiality, until rulings can be made. MR JAY Sir, may I call Mr Christopher Graham, please. MR CHRISTOPHER GRAHAM (sworn) Questions by MR JAY MR JAY Make yourself comfortable, please, Mr Graham and first of all tell us your full name.
A. Christopher Sydney Matthew Graham.
Q. Thank you. You've provided the Inquiry with two witness statements, dated respectively 16 September of last year and 20 January of this year, signed and dated by you. Is this your true evidence to the Inquiry?
A. It is. LORD JUSTICE LEVESON Thank you very much for the work that's been put into this, and indeed for facilitating during the course of last year the provision of information relevant to the work of your predecessor.
A. Thank you. LORD JUSTICE LEVESON It's obviously been work for your office which was not originally planned.
A. Indeed, but the Information Commissioner's office is very glad to help the Inquiry in any way we can. LORD JUSTICE LEVESON Thank you. MR JAY You, Mr Graham, are the current Information Commissioner and have been since late June 2009. Previously you enjoyed a career in journalism, broadcasting and then as Director General of the Advertising Standards Authority; is that right?
A. Indeed.
Q. Unlike Mr Thomas, I don't believe you have a legal background?
A. I'm not a lawyer.
Q. Can I ask you, please, about the handover from Mr Thomas. Presumably you were advised of the key issues that were concerning the office at that time; is that correct?
A. Indeed. And I had to brief myself on the key issues in my application for the position. It was a long-drawn-out process. Even after being identified by the selection panel, I then had to go before the Justice Committee. So there was plenty of time for me to acquaint myself with the issues and the concerns around the illegal access to personal information, whether by journalists or the much wider problem of information going missing from databases anyway. I think I was questioned about that both at the job interview and the Select Committee, and of course before I took up my position, I had conversations with Richard Thomas.
Q. In relation to press and journalism, what were the key issues facing your office in late June 2009, at least as explained to you by Mr Thomas or ascertained by you from your own research and perception?
A. I can't say it was the top of the list, the top priority. I was aware there was an outstanding issue of the commencement or the non-commencement of Section 77 and 78 of the Criminal Justice and Immigration Act, where there was a sword of Damocles hanging over the press. If there was any repetition of the behaviour that Operation Motorman had uncovered that would be accessed pretty quickly. But I have to say that there were many other priorities facing the office. I think the Select Committee questioned me mainly about the backlog in freedom of information cases. It's important to bear in mind that the Information Commissioner is responsible both for the right to privacy and the right to know, and the Freedom of Information Act was I think a higher priority at that point than the Data Protection Act. But then I had a wake-up call in week two, because the Guardian front page and Nick Davies' story brought the whole issue to my attention. I was very quickly contacted by the Select Committee and I had to get up to speed on that issue.
Q. "That issue" being specifically?
A. At that stage it was briefing myself on what had and hadn't gone on in the period up to 2006 when my predecessor had published "What price privacy?" and "What price privacy now?". But the issue quite quickly became of wider concern, because there was data going missing all over the place. There was the leak of the membership list of the British National Party, which was posted on the Internet, and that I was reminded in September 2009 by the judge in Nottingham Crown Court, who imposed a rather modest fine, as it tends to happen on these occasions for a Section 55 offence, and the judge said it had come as a surprise to him to find that he couldn't impose a custodial penalty.
Q. You gave evidence to the Select Committee Culture, Media and Sport on 2 September 2009. We'll come back to that very soon. Your witness statements make it clear that you did not believe that the press was significantly involved in breaches of the Data Protection Act really between 2006 and 2009, true that was before your time, and certainly between 2009 and today's date, and by implication had learnt lessons from the 2006 reports. Is that a fair impression to be gathered from your witness statements, Mr Graham?
A. I can only speak of what's in my own knowledge, and I can only speak of those aspects of press conduct that fall within the responsibilities of my office, and that's primarily Section 55. I know that the Inquiry was triggered by concerns about hacking of phones and hacking of emails, these are criminal offences that don't come under the Information Commissioner's office, but Section 55 certainly does. I can't prove a negative. All I can say is I've seen no further evidence beyond what we published in 2006, and that of course was about behaviour before 2003, when Mr Whittamore's office was raided, and much of it related to activity between 1999 and 2003. I simply offer a view that this is an issue of such high salience, many investigative journalists working in the area, great rivalry between newspaper groups, lots of campaigners, that if there was evidence of further breaches of Section 55 by the press, it would have been drawn to my attention, and it hasn't been. But I must stress that that doesn't mean that Section 55 isn't being breached. It's being breached every day, and my frustration is that I'm faced by the press, who say they ain't misbehaving, but they are flatly opposed or have been opposed to the introduction of a more effective penalty for these offences because they say it will have a chilling effect on investigative journalism. As a former journalist, I'm not in favour of something that's going to have a chilling effect on good investigative journalism, but we are facing a problem of not being able to get the courts and society to take seriously this very modern threat of personal information going missing from databases because members of staff are misbehaving, selling information, it's being blagged from them. It isn't just about the press. In fact, I went to the Society of Editors conference in 2009 and said it's so not about you. It's about NHS workers, it's about private investigators, it's about bank clerks, and it's frustrating not to be able to deal with that real challenge, which the Information Commissioner's office is concerned to deal with, because we're constantly met by the press saying, "This is terrible, the sky is falling, the sky is falling". It really isn't. Section 77 would provide the opportunity for a broader range of deterrent sentences than just a fine, and Section 78 gives the press a stronger public interest defence, because it's based on reasonable belief.
Q. Yes. LORD JUSTICE LEVESON How many private inquiry agents have you searched in the last five years?
A. We were investigating there are some ongoing investigations, and perhaps I shouldn't say too much about that, but that side of our work is very active. What I haven't done is to go back to Mr Whittamore and say, "How's it going on these days?" I don't believe the courts do that. If somebody is sentenced and punished, we move on. I don't think it falls to the Information Commissioner to go and have a look see ten years later to see whether he's a reformed character. MR JAY I just want to test some of those propositions, not in relation to Section 77 and 78, we hear what you say about that and that is clear, but were you aware that the Express Group were still using JJ Services, Mr Whittamore's alter ego, at least until 2010?
A. I wasn't until I heard it in evidence I think last week.
Q. Yes. A number of newspaper groups have given evidence to the Inquiry that they used search agencies, which they're careful to distinguish from private detectives or private investigators, and these search agencies obtain addresses, telephone numbers and similar sorts of personal data. Does your office know the methods these search agencies deploy, in particular whether they're lawful?
A. I'm certainly aware of the information which I think was in the witness statement from News International, which referred to a service where you could access ex-directory numbers on the web. We were certainly aware about that. One of the services, I think the GB Group, got going about 2002, so after many of the Whittamore offences, if there were offences, were committed. This is simply a phenomenon of the online world. If I'm ex-directory, I probably don't think too much about giving out my number when I am booking a flight or buying something online, and I really ought to read the privacy notice rather more carefully than most of us do, because that information may be shared and it will be claimed that I've given my consent. Consequently, a database of many millions of numbers may arise. So just being ex-directory to British Telecom doesn't get you very far. Is it lawful? The information should be processed fairly, and if you make a subject access request or you apply to the company and say, "I don't want you to go on providing my number", our evidence is where these cases have been raised with us that the companies are quite good about withdrawing that information and making changes. So on the face of it, not unlawful.
Q. There are two points there. The first point, as you say, if you're booking up a flight or obtaining any sort of service these days on the Internet, you have often to tick specifically a box which makes it clear that you don't want your private information to be shared with others. That's the position.
A. Yes.
Q. And that box may be quite hidden away, or certainly not patent on the web page you're looking at. Is that also correct?
A. That is correct, and it's one of the priorities of the Information Commissioner's office to help consumers understand how the world works and to get data controllers to treat their consumers as adults, and to give them the information. I mean, this is the next phase of data protection.
Q. Yes, but just speaking back for the personal interest in this and speaking for the wider public, why doesn't it work the other way round? Why don't you have to tick a box that makes it clear you are happy that your personal data is shared? Why do you have to tick a box to say that you're not happy? It doesn't seem right Mr Graham.
A. No, the opt-in, opt-out debate is raging all the time. We've had proposals from the European Commission yesterday about a completely new regime for data protection. In many cases you do have to tick to opt in. All I would say is the information that websites provide is typically deeply obscure. I mean Google, for example, have changed their privacy policy. I noticed on the search engine yesterday, it said, "Do you want to know more about our privacy policy?" and at that moment I didn't particularly want to do that, but it turns out that it's a huge change which aggregates all the various Google search engines and any information that you give to one can be shared with everybody. Big issue, which my office is now engaging with. So this is LORD JUSTICE LEVESON Could I ask you just to slow down a bit, because what you're saying is being recorded and we want to make sure we get it accurately.
A. Indeed. MR JAY The second point is why assume that a search agency has obtained this information because consumer X, such as me, has failed to tick the relevant box, the information, the personal data has been transmitted to the search agency and the search agency is therefore processing it lawfully? It may be that the search agency has obtained the information unlawfully in the first place. How do we know?
A. It wouldn't be fair processing if you were if you hadn't got the consumer's consent. I say the consent is very often claimed because of something deep in a privacy policy. I absolutely recognise the problem that you describe, but it's a different order to the sort of thing that we were dealing with with Section 55. I wasn't very convinced by the evidence from some other newspaper groups, who seemed to say that because they could, in 2011 or 2012, get the information that they were seeking from Mr Whittamore from some online source which they believe was lawful, it couldn't be an offence, it couldn't be a Section 55 offence, could it, to get Mr Whittamore to use the dark arts to provide the information from an earlier age. I say in my second witness statement that that's rather akin to saying that because second-hand cars are available for sale, it's therefore not an offence to take and drive someone's motor. It's just a non sequitur.
Q. I understand that point, Mr Graham, and it's a very fair point, but to go back to Mr Whittamore, who is probably still trading as JJ Services, is this the position: you don't know one way or the other whether he's using lawful means or unlawful means; is that right?
A. I don't know anything about Mr Whittamore's business except what I heard last week in relation to the Express. If one was dealing with if at the time one was dealing with newspapers who are saying, "Well, in good faith we had bought a product from this person, so we can't be blameworthy, can we?" I would simply observe that if you are dealing with a receiver of stolen goods, you shouldn't be surprised if the goods that you purchase are stolen. But I don't know whether that's happening now and I'm not sure that it's the job of the Information Commissioner, faced by all the other things we're being asked to do, to go back and check on something that was happening ten years ago.
Q. No, I'm not asking you to check what happened between the late 1990s and 8 March, I think it is, 2003. The question relates to what Mr Whittamore may have been doing since then. You do have power under the Act, Section 43, simply to ask him, in the first instance, what methods he's using, don't you?
A. But surely a regulator should act on the basis of current prima facie evidence?
Q. I'm not quite understanding your answer. Are you saying you don't have power or are you saying you do have power but you don't wish to exercise it?
A. I'm saying that if evidence is brought to my attention of continued misbehaviour, particularly in the light of a suspended sentence, it would be my responsibility to go back and enquire, but it's not my responsibility I think it would be quite wrong if I started probing when I have no reason to believe that anything's wrong.
Q. We'll come back to that when we look at the relevant section. The same point relates to the search agencies, there are presumably quite a large number. One of them was mentioned in evidence when Mr Thomas answered questioned posed by News International. I think it's a company called GB Group, but there are others who carry out similar activities. You could ask them, could you not, of the methods they use to gather their data? Do you accept that?
A. We do this all the time, but there's no reason to believe that in that particular case they're doing anything wrong. The evidence we've had is that companies like GB Group are very ready to respond to subject access requests and to amend the record. If you say, "That's a mistake, I didn't intend you to have that information", they take it down.
Q. But that suggests that you're leaving this to the consumer primarily to sort this out, rather than you as regulator to take a proactive line with these search agencies, and more specifically JJ Services, who, after all, have quite intrusive powers and may not be exercising them fairly and properly in all cases. Do you accept that?
A. There are two jobs. One is to arm the consumer, to educate and empower the consumer to exercise their information rights and to help them to assert them. The other responsibility is to educate the industry and to help online providers to understand that we are living in a world where all our information is online, and the Information Commissioner expects them to respect people's privacy and stick to the law, but a regulator has to intervene on the basis of evidence, and if we simply set off on a whole series of fishing expeditions, we couldn't cover the territory and I think it would be a misapplication of resources. If I'm presented with the evidence, Mr Jay, I will send in the troops.
Q. You're not like a journalist going on a fishing expedition. You're a regulator with proactive powers and obligations the font of which starts off with Section 51 of the Act and you have a range of specific powers ranging from Section 40 to Section 50. You could deploy those, couldn't you?
A. Yes but you're asking me to do a mystery shopping expedition on the basis of no smoke. LORD JUSTICE LEVESON But
A. We are if I could just finish the point engaged in a series of investigations at the moment of abuse of personal information. That's what my office does all the time. This Inquiry is particularly concerned about what may have happened to Mr Whittamore. This Inquiry is particularly interested, because it's been put in evidence, into the activities of some of these identification management businesses. Well, fine, but that isn't very high up my priority list of regulatory action. But if any information came my way suggesting there was abuse, then we would go into action. LORD JUSTICE LEVESON Could I just ask this, and it's to understand it rather than anything else: how will a consumer know if his or her personal data is being bandied about? I'm not targeting Mr Whittamore at all, I simply don't know, as you say, but absent that search, which was generated for different reasons, none of this material would ever have come to light. So because of a concern, I think it was through DVLA, I can't quite remember, so the search was organised, and then a veritable Aladdin's cave of material was revealed.
A. Indeed. LORD JUSTICE LEVESON And it just concerns me that I simply do not know whether somebody has got hold of my personal data, and I don't know how I would ever find out, and therefore, if I never find out, I don't know to make the complaint.
A. We have very frequent applications, sir, from citizens and consumers who have reason to believe that information they believed was secret has got out into the public domain, and sometimes that relates to the sort of activity that was highlighted in the Motorman files and sometimes it's much more sort of day-to-day and current, and we're able to assist consumers and citizens to make subject access requests under the Data Protection Act to find out what information people have and to get it corrected. The second thing is that since April of 2010, we've had the power to impose a civil monetary penalty of up to ?500,000 for serious breaches of the data protection principles and this is beginning to have a very salutary effect, both on public authorities and on commercial companies. They realise that the Information Commissioner has teeth. I don't think we're going to get very far if we invite the Information Commissioner to apply a scattergun approach and just go around checking different websites and different inquiry agents on the off-chance they might be breaching the law, when we have quite enough work following up on leads with some suggestion that people have been breaking the law. LORD JUSTICE LEVESON I understand the point. MR JAY I'm not sure it would take that long, though
A. It would.
Q. to formulate a letter which went out to all these search agencies to ask them a series of specific questions in relation to their modus operandi and invited responses. Depending on the quality of the response, you would then be able to determine whether or not further investigation was necessary. Do you accept that possibility?
A. Well, I certainly hear what you say, and our list of regulatory priorities at the moment, our information rights strategy has listed the priorities that we have, and it really starts off with the health sector and with the financial services and credit and so on. I do have to pick my targets, so I would be inclined to wait until I saw more evidence of current abuse than I have at the moment.
Q. This was a point which the Select Committee brought up with you on 2 September. In the further bundle of documents you supplied, under cover of your second witness statement, you'll see the transcript of evidence to the CMS Committee.
A. Indeed. Is that tab
Q. I think it's in the other bundle, 14.
A. Yes, I have it. MR DAVIES I'm sorry to interrupt, but the reference to a second witness statement of Mr Graham is a surprise to us. LORD JUSTICE LEVESON Oh? MR DAVIES Because I'm afraid we have never received such a statement. LORD JUSTICE LEVESON It is a statement dated 20 January of this year and it responds effectively to some of the evidence that has been given. MR DAVIES I can understand why it had been prepared, but unfortunately I don't believe it's reached us, and we've done such checks as we can within the last ten minutes without eliciting any reference to or knowledge of it. LORD JUSTICE LEVESON Well, hm. Can we do a check from this room as to whether it's on the system? We're doing it now. MR JAY Mr Graham, under tab 14, if you look at the pagination at the top right, it's EV353, please.
A. Indeed.
Q. The question on the bottom right, question 1869 from Mr Hall, are you with me?
A. Yes.
Q. "In previous questions from various members of the Committee you then try to establish the scale of the abuse that journalists carry out in this field, and the evidence you have submitted to the Committee is that there is no evidence you can see about whether this is an ongoing practice." And then you answer: "There is no evidence that we hold beyond the evidence which contributed to the 2006 reports. "Question: I just want to be clear that that is what you said. "Answer: I have not got anything else, so I cannot help you further. "Question: So your evidence to the Committee is that the practice of private investigators continuing in some illegal activity is ongoing and is a serious problem? "Answer: Yes." Who are the private investigators in general that you are referring to there, Mr Graham?
A. I was referring to the recent cases of concern. I don't remember the specific example. But just before I went before the Select Committee, we'd had the BNP case, which was Section 59, and we had given evidence previously, I mean my predecessor, Richard Thomas, had been before an earlier stage of the inquiry and we had prosecuted under Section 55 various inquiry agents. I'm sorry I don't have the detail to hand. The point I was trying to make to the committee was that they were you will see earlier on, they were constantly talking about hacking and I was explaining that that wasn't what we did. I was concerned because it's a breach of the Regulation of Investigatory Powers Act and is prosecuted by the police. But we had been concerned about Section 55 in relation to the press in Operation Motorman. I should say in passing, I've reread "What price privacy?", and it is about much more than the behaviour of the press. There are only five pages of the 41 pages that deal with the press
Q. We know that, the question was
A. It's relevant. That was the point I was making to the committee.
Q. Then Mr Hall carries on: "But we do not know who the clients are any more? "Answer: Well, we know some of the clients because of the example we have given. "Question: But they are not journalists? "Answer: We have not got any further evidence of journalistic involvement beyond 2006. "Question: Does that strike you as the news industry having actually cleaned up its act or as confirming the evidence that we have been given in this Committee that the government case was a one-off, rogue journalist acting ultra vires without the knowledge of his editor?" That, if I could just say, that related to a different case. It's possible that the question could have been framed in these terms, that the newspaper industry was saying in relation to phone hacking it's cleaned up its act; that was untrue. The newspaper industry is saying it's cleaned up its act post 2006. How do we know whether that's true, given that we do know it didn't clean up its act in relation to phone hacking? Do you see, if you put the point in those precise terms, what's your answer?
A. We were talking at cross purposes at the committee because they were talking about the hacking case and I was talking about the blagging case and we'd be in danger of talking at cross purposes here if we confused the two. All I'm saying is I don't have evidence beyond what we published in 2006. That evidence was itself historic. But I was surprised to hear the evidence from the Express, and the Express saying, "We had no reason to believe that a supplier was going to behave in a reprehensible way". I would simply comment to this extent: Richard Thomas in his evidence referred to the counsel in the Operation Glade trial and said that the journalists who had been questioned were tricky, well-armed and well-briefed, effectively a barrel of monkeys. The impression I get, from statements like the one we heard from the Express, is that if we're talking monkeys, it's see no evil, hear no evil.
Q. Mm.
A. But I have to say that I see no evidence, so I can't I can't comment.
Q. There's a recurring theme here, might it be said, that in relation to the whole issue of phone hacking, the argument was: it's one rogue reporter, it's not systemic. That argument, subject to the view of this Inquiry, may not be correct, putting it at its absolute lowest. When we look at the position the press have adopted in this Inquiry, they're saying precisely that: see no evil, hear no evil, et cetera. We don't know one way or another whether these search agencies are acting lawfully or unlawfully, but we're not going to find out. The question really I have for you is: why don't you find out, as the regulator?
A. Right, so the Information Commissioner started this whole thing off in 2006 and called for action to deal with the unlawful trade in personal information, part of which involved the press. We now have a judicial Inquiry, which is charged with investigating the whole area and the Prime Minister in the Commons on 13 July, if I can quote, because this struck me: "We should have made more of these reports [he's referring to the Information Commissioner's reports] which included some very important detail about what was going wrong in data handling, data theft and the rest of it. We must ensure that the Inquiry asks the question: why were they ignored, and what are we going to do now?" We seem to be in a completely circular debate, where the absence of evidence of wrongdoing is puzzling, but in the absence of evidence of wrongdoing, somebody ought to go and find some wrongdoing, and it had probably better be the Information Commissioner. LORD JUSTICE LEVESON I don't think it's fair to characterise what I'm trying to do in that way, Mr Graham, with great respect. I would put it rather differently. I do not know whether the sort of search that produced the Whittamore material, if conducted today, would or would not produce any similar material. It is said, and I've heard much evidence to this effect, that it would not. But with great respect, neither do you. Now, I appreciate your point that absence of evidence does not mean that there is something going on, but equally, absence of evidence does not mean that something isn't going on. We simply don't know what we don't know. Is that fair?
A. Indeed. This is Donald Rumsfeld territory, I suppose. But, sir, the terms of reference as I read them published on 20 July include the Inquiry being charged with finding the extent to which there was a failure to act on previous warnings about media misconduct, and we do seem to be in an Alice in Wonderland world where or Alice in Wonderland meets catch 22, where the Information Commissioner having sounded the alarm, the Inquiry, among the difficult tasks that it has, has been asked to establish why there was a failure to act on the previous warnings, the government says it can't implement Section 77 because there's a judicial inquiry, and Mr Jay is putting to me that it's somehow up to Information Commissioner to find out what's going on. I find that puzzling. MR JAY The question does not relate to historical excavation of what might have happened or what did happen between the late 1990s and 2003. The question is directed to the present.
A. Sure.
Q. It's really Lord Justice Leveson's question. He put my question in a slightly different way, probably more clearly: we don't know one way or the other. We do know that the press have come up with arguments, rogue reporter defence. They themselves accept they don't know one way or the other. You are the regulator. You have power to find out. Do you accept that?
A. Yes, but I repeat that I do think that given the many responsibilities that the regulator has, particularly at the moment with the revision of the European Directive, with concerns about privacy on the O2 system, on the Google system, with the post legislative scrutiny of the Freedom of Information Act, I can list any number of tasks that my office should be spending its time on. Here is an Inquiry. What about the Press Complaints Commission? There are lots of ways of establishing the truth, but I come back to the point I made earlier that there's been so much feverish activity over the past two years in relation to this with the various newspaper groups, with the journalists, with the books written on the subject, with the campaigning groups. If the best that critics can do is to turn up further evidence of what was going on between 1999 and 2003, it doesn't amount to much.
Q. Please leave that issue to one side, okay? We're not looking, at the moment, at what I've called archeology.
A. All right.
Q. We're looking at the present. Can I just direct your attention to your powers under the Data Protection Act and suggest to you that this could all be done quite straightforwardly? Your general power this is in your first witness statement, tab 62 of the bundle we've prepared, where you've included the whole of the Data Protection Act. It's page 08046 on the unique numbering system we're using. Your general duties are under section 51, aren't they, Mr Graham?
A. Could you just repeat that reference? I'm at tab 3 of the first bundle. Is this right?
Q. It's the whole of the Data Protection Act.
A. Yes.
Q. It's under 62 of mine but it may be tab 3 of yours. Do you have that section?
A. I have the Act in front of me.
Q. If you look at the pagination at the bottom right
A. MOD?
Q. Yes. You should be looking at the last five numbers, 08046.
A. Okay. 08046. Yes, "General Duties of the Commissioner", yes.
Q. "It shall be the duty of the Commissioner to promote the following of good practice by data controllers and in particular so to perform his functions under this Act as to promote the observance of the requirements of this act by data controllers." So that is your main function
A. Absolutely. And of course in order to do that you have to be fairly selective of the targets that you tackle.
Q. Section 55 is the criminal section, as we know. Section 32 might be an important section. It's 08029, which creates a special exemption for journalism, literature and art; is that correct?
A. Yes. And this is what I describe as the significant carve-out for the media from many of the provisions of the Data Protection Act.
Q. That's the proposition I was going to test with you, Mr Graham. Can we establish first of all that Section 32 is completely irrelevant to the criminal offence under Section 55
A. Absolutely. A journalist charged with involvement in a Section 55 offence might like to pray in aid Section 32. It wouldn't get him anywhere. Section 32 concerns the civil offences. Section 55 is about the criminal offences.
Q. Absolutely. If you look at the language of section 32, and I tried this one out with Mr Thomas, but I'm going to have another go with you: "Personal data which are processed only for the special purposes are exempt from any provision to which this subsection relates Those are the provisions listed in Section 32(2).
A. Yes.
Q. if (a) the processing is undertaken with a view to the publication by any person of any journalistic material."
A. Yes.
Q. The point I put to you is this: if you imagine the proposition, which the newspaper organisations have advanced, that they need to obtain ex-directory numbers in order to contact the subject of an article before it is published in order to obtain comment on the proposed publication
A. Mm.
Q. that cannot, as a matter of language or logic, be within Section 32(1)(a) because the processing of the relevant personal data, namely the obtaining of the ex-directory number and then storing it, is not with a view to publication of that data in any journalistic material. Do you see that?
A. It's not with a view to the publication of the data, but it is with a view to publication, and as an ex-journalist, I must say that I think the process of approaching subjects for checking out a story is absolutely essential, and I would be very concerned if newspapers weren't trying to contact people. The question is: do they contact people lawfully?
Q. If you look at Section 32(1)(a), what is being published, Mr Graham?
A. The activity is for the purpose of the preparation of an article for publication, and some may make it into the paper and some may not. And indeed when the journalist has made the phone call, it may be there's a perfectly satisfactory explanation for the thing he's checking out and that kills the story. That's called journalism.
Q. Yes, but what may happen is that the journalist contacts the subject, the subject gives his or her version of events, and it's that version of events which finds its way into the journalistic material. Are we agreed?
A. Yes, it's the version of events rather than the ex-directory number.
Q. That's right, and that's why the ex-directory number and the processing of that number has nothing to do with the publication of journalistic material. Isn't that the correct analysis?
A. I appreciate that it's your view. It's not something that I've given great consideration to.
Q. I'm not expressing a view; I'm just making
A. You're putting a proposition which I don't immediately recognise.
Q. I wouldn't put the argument if I thought it was completely wrong, obviously, Mr Graham, but I'm just putting it out for consideration and seeing your response to it. Have you obtained leading counsel's advice on Section 32?
A. Certainly I haven't and I'm not aware that the office did before my time. But isn't this angels dancing on the head of a pin? Parliament clearly intended, and it's in my first witness statement, that there should be a significant carve-out for press activity, which indeed is in line with the recitals to the directive which the Act implements. So if the point is put to me that Section 32 covers the writing of this piece, but it doesn't cover the obtaining of the evidence, I find that, well, a challenging distinction about which I would need to think further.
Q. It may spring from the language of Section 32(1)(a) before we even get to Section 32(1)(b). It is a simple linguistic approach, which may or may not be consonant with the policy and objects of the Data Protection Act. But it's relevant to section 43. If you look forward to 08039.
A. Yes.
Q. "(1) If the Commissioner "(a) has received a request but that doesn't apply here, so park that one. "(b) reasonably requires any information for the purpose of determining whether the data controller has complied or is complying with the data protection principles Then I paraphrase: you may serve a notice on the data controller requiring the data controller to provide you with specified information relating to the request or to compliance with the principles. So that means that if we fall outside Section 32, because Section 32 disapplies virtually all
A. Yes.
Q. of the data protection principles save the seventh principle, if we don't fall within Section 32 and you have some basis, or you reasonably require, in fact it says, any information, you can serve a notice for example on JJ Services, or on any search agency, asking them to provide any information relating to the request or to explain whether or not they are complying with the principles. That's very straightforward, isn't it?
A. Yes.
Q. Why haven't you done that?
A. We're talking current rather than historic.
Q. Yes.
A. We're also talking hypothetical, but nevertheless
Q. We're not talking hypothetical because we know Express were using JJ Services until at least 2010. We also know that newspaper organisation, and they're in good company, because others do as well, are using search agencies systematically. You could fire off, under Section 43, a number of information notices in like terms to all these people to find out how they're comporting themselves.
A. Yes.
Q. Do you accept that?
A. I'm interested in the point you're putting to me. I wonder where "reasonably requires" comes in.
Q. It's not reasonably believed that any contravention has occurred. "Reasonably requires any information" would include inquiring whether or not there is compliance with the data protection principles, wouldn't it?
A. So it's a spot check, if you like?
Q. Yes.
A. Mr Jay, I simply say Parliament has given the Information Commissioner all sorts of responsibilities, and I'm applying my resources in those areas where I have reason to believe there may be misconduct, and what you've described to me doesn't compel me to start scattering around Section 43 notices.
Q. It doesn't compel you, no, but there's certainly a power for you to do it, isn't there, Mr Graham?
A. Yes, there is. I accept that.
Q. And you also knew that Parliament, speaking as it were as the mouthpiece of the nation in September 2009, was specifically concerned with this issue, weren't they?
A. Yes, indeed, and I put the I gave evidence to that committee, but I also reminded them that there was the outstanding matter of acting on the 2006 report, because the Information Commissioner's office had taken the view that there should be action against the suppliers and the dealers, rather than acting against the users.
Q. But hasn't the focus of the office been far too much on the issue of activating Section 77 and Section 78, which involves political ramifications, rather than the straightforward activation of your powers under the Act? Wouldn't you accept that?
A. No, because the problem that I've been looking at since 2009 is the problem of information going missing from databases. It's a general problem. And the courts are imposing such modest sentences that it's not a disincentive. We have had in the past seven months four prosecutions in the magistrate's court and the going rate is about ?100 an offence. So my focus has been on trying to get through this log jam of a stand-off between and I think this does concern the Inquiry the politicians and the newspapers over something that the newspapers say they're not doing anyway. So I think it's absolutely right that I've been spending my time on that, but I assure you, my investigators are deeply into all sorts of investigations and abuses, but I haven't asked them to drop everything and go and see how Mr Whittamore is getting on.
Q. Can I suggest this, Mr Graham, that your difficulty, possibly, with persuading Parliament, or indeed the executive, is that in the absence of evidence that offences are being committed, people are saying, "Why do we need to impose a custodial sentence?" It might be
A. But the reason
Q. Let me just complete the thought. It might be said that the better way to proceed is to get the evidence, or at least to go down the line of inquiry. You start with Section 43. It takes you half a day to formulate your pro forma request of the search agencies, Mr Whittamore, and if necessary the newspaper groups. You wait and see what evidence comes back. Some of the evidence may be unclear, or incomplete, so you serve a further notice. If something untoward is there, then you can activate your other powers, including your enforcement powers. If the evidence is not there, then you publish that fact. But isn't this fairly basic, Mr Graham?
A. With respect, the pressure that I've been applying is very much evidence-based. You say there are no offences being committed. There are many, many offences being committed. It just doesn't happen to include newspapers at the moment, so far as I can see. I don't think it's going to strengthen my case if I add further cases. The previous government accepted the need to respond to the T-Mobile loss of customer data, and had a consultation in the autumn of 2009 about activating Section 77 and 78 of the Criminal Justice and Immigration Act, and then it all went quiet. Why did it go quiet? Because the press went into full defence mode again saying this is an absolute outrage, it would chill investigative journalism, and by the way, we don't do that sort of thing. We just can't seem to get past I'm hoping very much this Inquiry will do that we can't get past the government saying "Love to help you, but Lord Justice Leveson is looking at all of this".
Q. Is it your position that notwithstanding what I've attempted to do, show that there is a basic way through this, get the evidence base by using Section 43, that you're still not going to do it, Mr Graham? Is that the position?
A. I think I've made my point to the government and to Parliament. I've been supported by the Justice Select Committee. It's simply a question of the orders being placed for commencement. When the political will is there
Q. I'm not interested in the statutory instruments, I'm interested in your powers. When I said you're still not going to do it, I mean you're still not going to serve or consider the serving of information notices under Section 43; is that right?
A. I'm saying that the regulatory priorities of the Information Commissioner's office must be concerned about the current problems where there is evidence of abuse. We're absolutely flat out on a whole range of issues, whether it's car insurance or these cases of information security in the health service, in local government, issuing civil monetary penalties, dealing with freedom of information requests and so on. You're not dealing with a complacent regulator who can't be bothered to exercise his powers. I'm just saying
Q. I think the answer to my question is no, you're not going to do it? LORD JUSTICE LEVESON I think we can take a pause here and let me see if I've understood the position. First, your office has many statutory responsibilities which engage you, you have a very great deal to do in connection with those statutory responsibilities, and much material which you believe properly should lead to enforcement or other action?
A. Indeed, sir. LORD JUSTICE LEVESON You have, along with many other government bodies, limited resources within which to do it, so you deploy your resources as effectively as you feel is right?
A. If I could just say, I'm not pleading poverty. Every organisation has limited resources. We're actually quite well resourced on the data protection side. But every regulator has to make choices and to focus on the areas of greatest concern and abuse, and it usually begins with some evidence of things going wrong or else a programme of checking sector by sector. I'm not going to get the massive expansion of resources that would allow me to do everything that the various parties who have an interest in this Inquiry would like. I had a letter last night, and no doubt this will be coming up later in the evidence, saying why have I not made contact with every individual whose name is mentioned in the Motorman file? And part of the answer to that is going to be I would have to take on a veritable army of extra people. I'm also going to say I don't think it's necessary, but this isn't practical. All regulators have to pick their battles, prioritise their resources, and I just need some evidence of there being a problem before I divert resources to do it. LORD JUSTICE LEVESON And in relation to the penalty point, there are two aspects to it. First of all, you believe that for the real cowboys who are misusing data, there ought to be the potential in the courts to pass a custodial sentence?
A. Yes. LORD JUSTICE LEVESON That's in short?
A. Not just a fine, and for the real cowboys it might well be a custodial penalty, but I'm really concerned to access the full range of penalties available to the courts to make the punishment fit the crime. LORD JUSTICE LEVESON And you're concerned about the size of fines, and the problem with that, of course, is that bodies that could recommend or talk about the size of fines, such as the Sentencing Council, are concerned that if the legislation is about to change, there's no point in doing a lot of work on that, if suddenly the whole thing is going to be altered, and therefore what you're trying to do is to break the Gordian Knot?
A. Exactly. LORD JUSTICE LEVESON To break into it. I understand. And to Mr Jay's proposition that it would involve no great exercise of your powers to monitor what has happened in the ten years since Motorman, you identify the other competing demands upon your time and the need to deploy your team most effectively?
A. Indeed. But I hasten to say, sir, that if a recommendation of your Inquiry was that I should consider deploying my resources that way, of course I'd have to take it very seriously. LORD JUSTICE LEVESON I understand that. I understand that. Now, the position in relation to Mr Rhodri Davies' point is, I am told, that the statement which we've got and which I've seen was received on Friday and was not circulated, in error. But it was received on Friday. I don't know whether you've seen it, Mr Caplan? MR CAPLAN We haven't had it either. LORD JUSTICE LEVESON What I would like to do is I'm going to take the break early and just pause so that you can read it. If you need further time, then I will interrupt Mr Graham's evidence, with due apologies to him, and move on to something else, so that you can read it rather more leisurely than ten minutes would give you. I don't think you will find anything that is of sufficient concern to you. It addresses some of the concerns that have been raised about access to material, it deals with Ms Hartley's evidence on access. It contains an explanation, and I think it's not fair to say regret, so I don't think it will cause trouble, but I think if we just take five minutes for you to see it, then you can look through it and see whether you need any more time. MR CAPLAN May I just mention one other matter, it's really a correction. Mr Graham, I think it was a slip of the tongue, said that he was unaware that Associated Newspapers had continued to use Mr Whittamore until 2010. LORD JUSTICE LEVESON He meant the Express.
A. I meant the Express. I apologise. LORD JUSTICE LEVESON All right. Very good. Right, we'll just have the break now, so that that can be done. Thank you very much. (11.00 am) (A short break) (11.14 am) LORD JUSTICE LEVESON Mr Davies, Mr Caplan and those others concerned, I am sorry that you did not have this statement in advance. If you are in difficulty, then I shall cope with it. MR JAY Mr Graham, may I move on to some different topics, one is related. At the Select Committee hearing on 2 September 2009 you extended an offer to newspaper organisations, if so advised, to come and look at the Operation Motorman material. That's clear from EV353. We needn't
A. Yes.
Q. dig it up. It's clearly stated there. Your evidence is as well that that was repeated at a Society of Editors conference at Stansted in November 2009; is that correct?
A. That's my recollection.
Q. And your second statement makes it clear that the offer was taken up somewhat belatedly by the Guardian Media Group, first of all in February 2011; is that correct?
A. Yes.
Q. And then it wasn't until the announcement of the Inquiry that there was a rash of approaches to your office; is that correct?
A. Indeed.
Q. As part of the wave of approaches, Associated, I think Express and News International contacted your offices; is that right?
A. Yes, and also the public the publishers at one of the magazines, the magazine Closer, I think, Bauer.
Q. Whether or not that's a coincidence may be open for consideration. But can I deal with the issue which I know Hacked Off have raised with you and are keen that I put, which is in effect the individuals in the Whittamore notebook should be written to and advised that their data has been unlawfully accessed, that the nature of the data should be given to those individuals and if not the journalists, then the newspaper organisation who procured that information should be named to the victims. What is your response to that, Mr Graham?
A. I did deal with this in my evidence to the Select Committee back in September 2009, and of course a fair number of individuals have had access to the Motorman material, either through subject access requests, "I think I may be in the file, I want to check, I want to see, I want to get it corrected", or indeed as a result of court orders, where litigants in various civil actions have persuaded the court that they ought to see the material. When I went before the Select Committee in 2009, it was apparent to me that a number of members of the committee had a very good understanding of what was in the Motorman files. I suspected at the time that that might have come from some of the material which had been released under court order. Members seemed to be particularly well briefed. And at that point, I formed the view that the Section 59 position where we had not been making available information in to the newspaper groups certainly needed to change. So far as the individuals are concerned, I'm still very ready for subject access requests by those who may be concerned. The difficulty about simply contacting everybody lies in the nature of the dossiers themselves. Mr Jay, you've seen them. I don't know whether all the core participants are in that position, but these are notebooks, and sometimes the information contained in them is deeply obscure. I said in my witness statement that the individual who made the notes must have had a perfect understanding of what he was intending, but it isn't always clear. That partly explains why there's sometimes a discrepancy between the spreadsheets that we've compiled and the notebooks. If you said to me, "You ought to notify everybody whose name appears in the Motorman files", I'd be hard pressed to do that. It isn't just a question of resources, it's it isn't immediately clear who is being referred to, because it isn't just celebrities, it's all sorts of people who may or may not be part of a story concerning a celebrity or whatever it is; it's just a name. Sometimes it's just a surname. I think Richard Thomas put the point very well in his response to you on this matter, when he said: if, having established the identity of the individual and their address, we wrote to them to say simply, "Your details appear in the Motorman file, we can't tell you why", that might be an even greater breach of privacy than the original offence, because there would be a suggestion that there's no smoke without fire. Other members of the family might see the letter and say, "Hey, what's going on?" and I couldn't tell them any more than a name appears in a file. It would be a phenomenal undertaking. Just because there's a name, John Smith, I would then have to work out which John Smith. The example I gave to the Select Committee was Ziggy Stardust, that's a bit easier to do, but there are an awful lot of very anonymous names and it simply isn't practical. However, if Hacked Off and their lawyers are representing particular individuals, then that's what we're here for: subject access requests, off we go.
Q. Some miscellaneous questions now, Mr Graham. I think you told one of the seminars that your understanding of the position in relation to the statutory instrument which might activate Section 77 and Section 78 is it's the position of the government that they're awaiting the outcome of this Inquiry; is that right?
A. The I mean, yes. The situation basically is that there was a consultation, there has to be a consultation under the Act, in the autumn of 2009, and we've never had a response to that consultation. And the new government wasn't particularly keen to proceed. When I started drawing to their attention the cases involving NHS workers and bank workers, I was told that nothing could be done about it because this was a matter now before the Leveson Inquiry. The learned judge has the Chairman has said it's finding a way of cutting through the Gordian Knot, and the suggestion to me was that I could use my audit powers to cut through the Gordian Knot and provide an even better evidence base. I'm not sure it's really about evidence. Another way of cutting through the Gordian Knot is for this Inquiry to conclude that that particular proposal, commencing a provision in an Act of Parliament which has been properly debated, is a matter for government and that the Inquiry wouldn't wish to be seen to be holding things up. There seems to be a dialogue with the deaf at the moment.
Q. The penultimate question LORD JUSTICE LEVESON Would I have to conclude, or reach some conclusion, to the effect that I did not accept the proposition that implementing these provisions would have the chilling effect that is contended?
A. If you took the view, sir, that Section 78, which applies a reasonable belief test to the public interest, was strengthening the position of the press, then that's good to go. But the dilemma we are in is that our press friends say that they're not doing this anyway, so why should concerns about press freedom, which are in any case misguided and I say this as a proud former journalist in any case misguided, those considerations shouldn't be seen to be holding up something which I need to deal with the many breaches of Section 55 which are going on all the time. LORD JUSTICE LEVESON That's a different point, because it's unlikely that I am going to be able to assert or that I would want to feel it's necessary to assert this is not happening, or to the contrary, that this is happening. I am looking at the culture, practices and ethics of the press, and I'm not looking at specifics.
A. Yes. LORD JUSTICE LEVESON The specifics are, to some extent, prohibited from me because of the distinction between parts one and two of my Inquiry, and the ongoing criminal investigation. Now, that might bite specifically on RIPA-type offences, but doesn't necessarily exclude any offences that arise from a police investigation. That's one issue, but if I am going to have to be able to say that I don't think this ignoring the fact whether they're doing it or not I don't think it in any sense chills the freedom of the press, then that probably is a conclusion that is going to have to wait for the Inquiry, isn't it?
A. Yes. LORD JUSTICE LEVESON I'm merely thinking about what I could do and when, depending upon the view that I have formed.
A. Indeed. I understand the difficult position that the Inquiry is placed in. Another way of tackling the Gordian Knot is for the press, who are so convinced of their rectitude, to get together with the Ministry of Justice and say, "Okay, we accept that Section 77 and Section 78 should now be activated because we're not doing it anyway and the 78 defence is okay by us." LORD JUSTICE LEVESON Well, I'm not going to enter into the debate that the press might have with the government. I have enough difficulties with the debate that the press are having with me, without entering into another debate. But that's the issue, in any event. All right. MR JAY Your ideas for future press regulation, Mr Graham, in particular having regard to your experience with the ASA. Are there any ideas that you'd like to share with the Inquiry?
A. It's obviously a personal view born of experience, but I was for eight or nine years the Director General of the Advertising Standards Authority, which is an effective self-regulatory body. Of course, I can't speak for the ASA these days, I'm two and a half years out of it and there have been all sorts of changes in structure and so on. But I simply offer the view that I gave at the seminar, which preceded this stage of the Inquiry, and that is for self-regulation to be credible, it has to be effective, and it has to be so structured that the public can have confidence that those who are being regulated are not just looking after their own interests. The difference between the Advertising Standards Authority and the Press Complaints Commission in my day was that there was a much greater separation of function between the investigatory and adjudicatory side, the Advertising Standards Authority, and the code writing side, the Committee of Advertising Practice and latterly the Broadcast Committee of Advertising Practice. A lay majority on the ASA council with the minority of experienced industry people not being the equivalent of serving editors. I don't know whether it had always been that way with the ASA. When I came in in 2000, a number of the newspaper trade associations, who of course are part of the tripartite advertisers, agencies and media, were very concerned to explain to the new boy that I shouldn't be seeking to adjudicate all the time, it should be a word in the ear. The industry would follow the lead that the regulator gave; it didn't need to be done so publicly and so formally. And I disagreed. But I was told that I should look at the way that Lord Wakeham runs the Press Complaints Commission, and I think there may have been a bit of a parting of the ways there. As an observer, and a friendly observer, I think it's a huge mistake to have serving editors serving on the Press Complaints Commission. I think the editors should write the code, and be prepared to be judged on the titles' observance of it, and then it's up to a demonstrably independent and effective Press Complaints Commission to apply that code. That was the model in the advertising standards business, that is widely respected, and it's something to which the media, the non-broadcast media, of course are involved in through their membership of the Committee of Advertising Practice, so I don't see why it's such a difficulty when it comes to the PCC. MR JAY Thank you very much, Mr Graham. LORD JUSTICE LEVESON You don't have a problem, though, Mr Graham, or you didn't have a problem when you were the Director General of the ASA, in relation to non-participation?
A. Well, no, because that was I don't know how I could apply this point to press content regulation. The beauty of the advertising system was that the three legs of the stool, the advertisers, the agencies and the media, had a mutual interest in the credibility of commercial communication. They were all in it together. And so if an advertiser said, "Well, two fingers to the ASA, I'm taking no notice of you", they simply didn't get space in the papers. I've been searching for what is the equivalent principle that binds all the participants in the newspaper business together. You would hope that it would be about a search for truth, and an editorial independence, and all those good things. It seems to be about being allowed to continue drinking in the last-chance saloon and the politicians wouldn't dare to do anything else. I'm not in favour of statutory regulation of the press, and I'm speaking purely personally here, but self-regulation will only survive if it's credible. If it's lost the confidence of the public, then something has to give, and different arrangements have to be put in place. But if you don't have credibility, you can make all the speeches you like about self-regulation, and you get back to the observation of the LSE professor who said, being a sceptic, that self-regulation in some circumstances had as much relationship to regulation as self-righteousness does to righteousness. MR JAY Thank you. There may be some more questions. MR DAVIES I wonder if I could just raise two points with Mr Graham? LORD JUSTICE LEVESON Please. Questions by MR DAVIES MR DAVIES Mr Graham, my name is Rhodri Davies. I appear for News International. I wanted to ask you about two things. The first is custodial sentences in Section 55, which you've talked about a lot. As I understand the problem, the problem that you want to attack at the moment is what you've called the modern scourge of data theft, and as far as you know at the moment that's not a problem with the press, it's the banks, the NHS and so on?
A. We were always, I think, at the ICO looking at it from the point of view of the suppliers and the dealers rather than the users. As I've said ad nauseam, I have no evidence as to use, but I am concerned that I don't have effective powers to deal with what is a modern scourge just because we do everything online. We're all very vulnerable.
Q. So the practical target you want to hit at the moment is the people who leak data from NHS databases, banking records and so on?
A. Yes. I would also say the sort of people Mr Whittamore and his friends were ringing up. LORD JUSTICE LEVESON It can't be limited to that, can it? Because if there was no market, then there would be no worth doing it.
A. Indeed, sir, but the fundamental principle that we were dealing with in this report all those years ago was that those who were in a position of trust in the health service or the phone companies or the DVLA didn't see passing on information for sums of money as being particularly serious. Certainly the penalties that were imposed were not enough to disincentivise it, even if you got caught, and the whole attitude of society and the courts to this modern phenomenon, because we're now in the information age, was that it was no worse than pinching the office stationery. So I'm not looking to jail lots of people. I can't imagine that a journalist going about his or her business with a proper story and a good public interest reason for doing it would be in any trouble with the ICO or with the courts, but I want to deal with the problem of the courts being limited to fines and then dealing with people who are of limited means and can only be fined about ?100, and the court doesn't have the option of doing anything about a community sentence or tagging or curfew or whatever else might be involved. It's just the going rate is ?100. It happened again the week before last. It's nothing. MR DAVIES The political problem, if I can call it that, that you have in getting the existing legislation into force is what we might call the perceived effect on the press. It's not the bank clerks who are campaigning against this; it's the perceived effect on the press which is your problem?
A. My problem is the press. It's not the perceived effect on the press, it's the behaviour of the press, worrying away at a penalty designed to deal with a problem which they say doesn't apply to them, and I say, "If it doesn't apply to you, get out of the way."
Q. Isn't the way through this, which might perhaps satisfy both parties, simply to exempt from the threat of a prison sentence anyone who is acting for the special purposes of journalism, artistic or literary matters, using the phraseology in Section 32?
A. How much of a good deal do you guys want? Excuse me, sir, for being heated about this, but you fought everyone to a standstill back in 2006/7. You did it again in 2009/10. You've got so many privileges and exemptions. It's perfectly possible for a journalist to do a decent job legally. There is Section 78 on the statute book, applying the reasonable belief of the journalist that what they were doing for publication was in the public interest. It's going to be very difficult for anyone to strike that down, but there are some people who believe that that's more generous to the press than really should have been the case, but that was the deal. Now, if I understand it, you're sort of coming back for more on behalf of your clients.
Q. What I'm trying to do, Mr Graham, is to point out a route through the problem, or one that bypasses the Gordian Knot, and I'm not quite understanding why this solution is not acceptable to you.
A. Well, this isn't a negotiation about these things, but it sounds to me as if the representatives of the press want to be somehow above the law. Surely a free press operates within a framework of law, and a vibrant and healthy press, challenging those in authority and doing the job that it should be doing and the job that I joined the profession to do, operates within the law. Yes, okay, you sometimes have to apply the dark arts to get the story, and then you're accountable for it. And if you're really in trouble, that's the mitigation that you put to the court. But we can't keep having more and more carve-outs and reductions and special cases, surely.
Q. The point is, Mr Graham, that prison sentences do have a more chilling effect than the lesser sanctions available to the court LORD JUSTICE LEVESON Is that right, Mr Rhodri Davies? I'd be very interested to see evidence about that, because one thing is for rock solid certain: interception of communications did have a custodial sentence attached to it, and it didn't seem to have stopped a great deal of activity. MR DAVIES Well, that certainly was true-up to 2006/7, I entirely understand that. LORD JUSTICE LEVESON I'm not, I think, trying to make a cheap point. I'm not doing that at all. But I am concerned about the evidence base for the assertion. I'm not stopping you, I understand the point, and of course you can pursue it. MR DAVIES Well, I think really, what I'm putting to you, Mr Graham, is your own assumption, which is that if the sentences available for breach of Section 55 are increased and the range of sanctions available to the court is widened, then you think that that will have a beneficially chilling effect on people who would otherwise contemplate a breach of Section 55?
A. It would have a beneficially chilling effect on DVLC workers handing out car numbers and addresses based on those car numbers in exchange for money. It will have a beneficial chilling effect on health workers who apparently think it's perfectly okay to access someone's medical records in order to find the telephone numbers of their in-laws, who they're having a fight with, or the bank clerk in Haywards Heath who thinks it's fine to look at someone's bank records in order to provide the case in her husband's defence in a sex attack trial. That's what we're dealing with. What's that got to do with the press? If you're not doing this stuff, get out of the way.
Q. Yes. I entirely understand those problems. Can I just ask you about one other thing, which is perhaps not unrelated. Ex-directory telephone numbers. Mr Jay asked you about the databases such as GB Group, and as I understand your evidence, your position at the moment is that have you no reason to think that they operate unlawfully?
A. It's actually better than that. I was reminded in the break that the Information Commissioner's office had been consulted by GB Group when they started, and while that doesn't provide a Good Housekeeping seal of approval, it does at least indicate that there was a responsible data controller seeking to establish what the rules were, and we have seen evidence of information being corrected and numbers being withdrawn in relation to subject access requests. But as I said earlier, just because that information is available online quite lawfully doesn't provide a cover for obtaining the same information through unlawful means.
Q. Yes. So we may be in the position that a journalist can lawfully obtain an ex-directory telephone number from GB Group or one of their competitors?
A. If somebody has either shared their number with a provider and isn't particularly concerned about whether or not it's shared more widely, or there's simply been a mistake and that individual hasn't withdrawn the number from the service, yes, that's certainly the case.
Q. But if that number is not available on a database lawfully held by GB Group or someone else, then would it be your position that if a journalist wanted to obtain that number in order to contact someone to contribute to a story or to put a story to them, that would be a public interest ground for obtaining the data?
A. Because of the need to contact the individual for a quote?
Q. Yes.
A. Yes. So why would you not do the old basic journalistic stuff of ringing around and getting the number? I'm amused to see, for example, that my second statement has helpfully redacted the address of the office of the Information Commissioner. I think that's taking privacy a little far.
Q. Yes.
A. If you want to contact me, you don't need my home number. You ring up the office and you say, "It's urgent we speak to Mr Graham, please contact him, tell him to ring us", and that's what reporters do. You don't have to ring up a private investigator to bribe someone at the Driver and Vehicle Licensing Centre to get details.
Q. Suppose it's a retired civil servant who is not on good terms with his ex-office.
A. Then you might well in that case have a public interest defence. I'm not quite sure where this is going because you can't generalise from the specific. I didn't notice many of them in the Motorman dossier, by the way.
Q. There is at least one, actually.
A. I must have missed that. Actually, Mr Davies, you raise that point. You'll see in the transcript of the Select Committee hearing that I was embarrassed by questioning from Mr Farrelly, the MP, who was talking about the case of Peter Kilfoyle, the former minister, who was apparently incandescent that he hadn't been informed by the Information Commissioner's office that the Mail, I think, had been trying to get hold of his home number. I was flustered and I said I'd better go and find out more about this, and when I looked at the file, this was on the weekend that he had resigned from the government. It was a Sunday night, and news desks, very reasonably, I felt, wanted to get hold of his information. So I wrote to the Mr Kilfoyle and said, "You're very welcome to exercise your subject access request, come and view the material and so on but that's what it's about", and I heard no more. That's an example of a manifestly defensible use of that service. LORD JUSTICE LEVESON But is it? Why wouldn't a journalist simply have been able to contact the relevant ministry from which he had resigned and say, "We are very keen that Mr Kilfoyle have the opportunity to make some comment. Could you please ask him to phone us"?
A. Perhaps they tried that, I don't know. But if someone's just stormed out of the government, the ministry's not going to be terribly helpful in putting you in touch with the ex-minister. LORD JUSTICE LEVESON Do you think not? MR DAVIES So that is a situation, Mr Graham, where, as I understand it, you think that the journalist might very well have a public interest defence?
A. I say it's arguable, anyway.
Q. It's arguable. That's the difficulty, isn't it? Because once we're into the territory of it's arguable, and it's a prison sentence if you're wrong, do we not have a chilling effect?
A. But all you have to advance is the reasonable belief that the story you're pursuing was in the public interest. Really, if you can't make that case, you shouldn't be in journalism. It's a very, very good increased defence for journalists.
Q. I'm just wondering how far that goes. So you say if there's a reasonable belief that the story you're pursuing is in the public interest, then that would be a public interest defence to obtaining an ex-directory telephone number? LORD JUSTICE LEVESON I'm not going to allow you, Mr Davies, to use the opportunity to try and tie the Information Commissioner down. Let me say what I presently believe, and then people can make submissions in due course. I presently believe that the new potential provision contains both subjective and objective elements, so not only must the journalist believe that it's in the public interest to do so, but there must be reasonable grounds for that belief. Thereafter, if I follow up your earlier question, the Information Commissioner would have to decide whether there was evidence to rebut that defence before he thought of bringing a prosecution. If he thought of bringing a prosecution because he thought he could rebut the defence, it would be open to the journalist to advance the defence in court. If the court decided against the journalist, then it would have to decide on a scale how grave the particular offence was, and in my experience of sentencing criminal cases, which extends over 27 years, I don't think you'll find that there would be any question of a mandatory sentence in those circumstances at all. MR DAVIES Yes, all right. I think I have ventilated the two points I wanted to raise. LORD JUSTICE LEVESON Thank you very much indeed. MR DAVIES Thank you very much.
A. Thank you. LORD JUSTICE LEVESON Mr Graham, thank you very much. Yes, Mr Barr. Do I gather from the fact that there are two chairs that we are having two witnesses together? MR BARR We are, sir. Good morning. It's going to be Google first, and the witness statement by Google has been provided by Ms Daphne Keller, but in communications with Google, it's become clear that in order for the Inquiry to have the full benefit of answers from a broad-ranging experience at the company, it's going to help if Mr David John Collins sits with Ms Keller and they answer from their collective expertise. LORD JUSTICE LEVESON Thank you. MR BARR Please could I call Ms Keller and Mr Collins. MR DAVID JOHN COLLINS (sworn) MS DAPHNE KELLER (sworn) Questions by MR BARR MR BARR Ms Keller, could I start with you first, please. Could you tell the Inquiry your full name? MS KELLER My full name is Daphne Hija de Primavera Keller.
Q. And could you confirm that the contents of your witness statement are true and correct to the best of your knowledge and belief? MS KELLER Yes, they are.
Q. You tell us that you are the legal director and associate general counsel for Google Inc. and you've been an associate of Google for seven years. Mr Collins, could you give the Inquiry your full name? MR COLLINS David John Collins.
Q. You tell us that you are the vice-president of global communications and public affairs? MR COLLINS For Europe, Middle East and Africa, yes.
Q. Could you give us a little bit more information about your professional background in new media, please? MR COLLINS Yes. I've worked at Google for five and a half years. I advised the company on predominantly public policy issues and before that I've spent between 10, 11 years in public policy and communications. LORD JUSTICE LEVESON I know, Ms Keller, I'm right in saying that you've come from America to give evidence. I'm very grateful to you. I gather from where you're posted you've probably not come from America. MR COLLINS I've come from Victoria in London. LORD JUSTICE LEVESON Then I won't extend the same thanks to you, but I certainly will thank Ms Keller for taking the time to come. MS KELLER I'm happy to be here. MR BARR Before I descend into the detail, could I ask you some broad questions about Google's approach to privacy in principle? Can I start with a document which is at tab 21 of the bundle. It's an article in a publication called The Register, which was published on 7 December 2009. I think I need only read the headline. It quotes the Google chief executive officer, Mr Eric Schmidt, with the summary: "Only miscreants worry about net privacy." The quotation being: "If you have something that you don't want anyone to know, maybe you shouldn't be doing it in the first place." Can I ask, is that representative of Google's approach to privacy in principle? MR COLLINS It's I think I'll answer in two ways, if I may. It's not representative of the headline is not representative of the point that Eric Schmidt, now our chairman, was making. The obvious point that he was making was if you share information online, you are sharing it, and it's then shared and it's out there online. But obviously the headline is not representative of our privacy principles. Google takes privacy extremely seriously, and it's governed by essentially three broad principles. Firstly, transparency, so making it incredibly clear to the user, someone accessing our services, what data is being collected, how the data is being stored, but also how they can then access, delete and/or remove that data. Secondly, choice, so when the user is using the product, they have a very granular level of choices about what settings they want to make using that product. Thirdly, control, and this is really important, so when the user is using the product, they have ultimately they have the control over how that data is being used. If I may give an example, if I open a Google account and I want very personalised search results, most relevant to me, I can turn that setting off and on at any stage. It's not Google that sets it, it's the user. So to go back to the principles, they really are transparency, choice and control, and just to emphasise it, the headline in the register is not representative of either Eric's view or the company's view on privacy.
Q. Over the page at tab 22, there's a BBC News item no doubt with the unwelcome headline "Google ranked worst on privacy" and it's reporting back in 2007 that a rights group, Privacy International, rating a lot of media companies, had rated Google worst on privacy. I'm very conscious that that's an article which is now some years old. You've provided to us a copy of the current Google privacy policy, which is dated 20 October 2011, and I understand that there is a further privacy policy which is shortly going to supersede the existing policy. Is it fair to say that Google has made considerable efforts in recent years to concentrate on privacy and its approach to privacy? MR COLLINS Absolutely. If I can refer to the BBC News article that you mentioned, I think if you spoke to Privacy International now, their view of Google and privacy would be very, very different to the view that they had then. I would also not have agreed with their position then, and I think I remember having conversations with them at the time LORD JUSTICE LEVESON I'm sure you do. MR COLLINS but their view would be very different now. I think it's right to say that Google has always taken privacy very, very seriously, it's not just taken privacy seriously from a very strict legal compliance position, it's taken privacy seriously because ultimately the trust that we have with our users is incredibly important. Over time, the way in which our privacy governance model is built, and the way that then that plays out in the engineering or product design decisions that we make, has certainly improved and improved over time, we make a very big effort at that. I'm very happy to go into some of those processes if you like now, or later on. MR BARR What I would like to ask you about that is: what consultation has there been with the United Kingdom in formulating the forthcoming privacy policy? MR COLLINS The forthcoming privacy policy, that will be announced this week. We talked to the ICO beforehand, we talked to many data protection authorities around the world, plus also privacy advocates, activists, beforehand. But it's important to emphasise not just because of this privacy policy change. We have an ongoing dialogue, a very regular dialogue, with many of them throughout the whole of the year. The reason why we do that again isn't because there's a legal obligation to do it, it turns out there isn't, it's because we want the benefit of their wisdom. Google does not have all of the wisdom on privacy. We want to hear from other people to make sure that we get the decisions right, and we welcome the input that we get.
Q. There was a well publicised problem when Google Street cars accidentally collected some private data. That resulted in the Information Commissioner's office here looking into the matter. It concluded there had been a breach of the law, but that it was accidental, and it exercised its discretion not to take legal proceedings. But as a result, I think I'm right to say that Google submitted to a data protection audit report? MR COLLINS Yes, we did, and it's important to emphasise that we profoundly regretted that incident. As soon as we discovered the incident, we announced it very, very publicly and we immediately contacted the ICO in the UK but also data protection authorities around Europe and around the rest of the world. Part of the agreement that we reached with the Information Commissioner's office was to submit ourselves to an audit, which we obviously did, and the ICO audit report makes clear that we made a number of very significant changes and improvements to our privacy governance model internally. I think one of the most important of those was the construction of what we call our privacy working group, headed by a director. That brings together the different functions internally to ensure that our privacy principles are being constantly enacted internally and we've welcomed the Information Commissioner's audit as affirmation that we were heading in the right direction on the specific issues that they raised.
Q. The audit we have in the bundle at tab 10, dated August of last year. It was obviously reporting on a Google privacy report, no doubt dealing with the matters you've just outlined, and the overall conclusion that I'm looking at reads: "The audit has provided reasonable assurance over the accuracy and findings of the privacy report as provided by Google Inc. to the Information Commissioner. It has also provided reasonable assurance that Google have implemented the privacy process changes outlined in the undertaking." It went on to identify some scope for further improvement and records the fact of improvements which had taken place. Are those recommended improvements matters which have been taken into account in the October policy in the forthcoming new March privacy policy? MR COLLINS Well, to go back to one of the core elements of the audit report was the construction of the privacy working group, and absolutely that was the privacy working group was very much part of the privacy policy change that we announced this week, which of course is part of an ongoing process of improving our privacy policies. I just, if I may, sir, just outline very briefly what those what we are trying to do this week with our privacy policy change because it's very relevant to the idea that we discuss our privacy policies with outside parties. Part of the feedback that we had had from data protection authorities was that we had too many privacy policies. It turned out that we had over 70 covering our different products. Each of those privacy policies was accurate, it gave users really useful information, but the fact that there were so many of them probably didn't help the average user understand exactly what those privacy policies were intended to do. So we took that feedback on board and produced one simplified privacy policy, and we were very pleased yesterday that Viviane Reding, the European Commissioner in charge of privacy, who published new regulations around online privacy yesterday, said that she applauded it, so I think it's very much a product of the feedback that we've had, the privacy principles that we that govern our approach on privacy, and also the fact that we take privacy very seriously.
Q. Thank you. That's all I want to ask you about privacy in principle. If we could move now to look at the corporate structure of Google and Google's operations in the United Kingdom, Ms Keller, you tell us in your witness statement that in the United Kingdom Google has over 1,000 staff working on advertising sales, software development and other functions in London and Manchester. They're employed by a subsidiary company, Google UK Limited, which is incorporated under English and Welsh law. Importantly, however, your search engine services are owned and operated by Google Inc., which is a Californian company, isn't it? MS KELLER Yes, that's correct.
Q. You tell us a little bit about in practice where your computer servers are actually based, and there's an exhibit which tells us where the various data centres are. It's right, isn't it, that none of them are in the United Kingdom? MS KELLER Yes. The list of data centres that we submitted is correct. None of those are in the UK.
Q. Although Google Inc. is an American company and your servers are located outside of our jurisdiction, you tell us that that's Google policy to operate your UK-directed services consistently with UK law, and users of your service will be familiar with the address google.co.uk. Is that the vehicle for achieving that aim? MS KELLER It's a vehicle for achieving a larger product aim, which is providing a search service which is particularly useful for users in the UK, so that the google.co.uk service is tailored to be as relevant and useful as possible for UK users. So, for example, if you were to search for "football" on that service, it would show results about Manchester United or about what Americans would call soccer, whereas a search for "football" on our US-directed service, on .com, is going to turn up results for US football. Really, it's, as I said in the written statement, on the UK service we structure it to comply with UK law. This is where the UK law-based removals happen, but it's not just about that, it's about providing a service that's the best for UK users. And I would add that we try very actively to channel users to that service, so if someone if a UK user types in the google.com web address in their browser, we automatically redirect them to .co.uk because we think that's the best service here and that's the one that we operate in compliance with UK law.
Q. But it is possible for a user here to log onto google.com, isn't it? MS KELLER Yes.
Q. And that is a different site? MS KELLER That is the site that we operate as targeted to the United States and it's operated in compliance with US law, much as the google.de site is the site targeted to Germany and operated under German law, and so forth.
Q. That becomes relevant because you go on to tell us a little bit about your removals policy in relation to your website. I'm going to explore that in some detail in a moment, but before I do that, it might be helpful if we explore in the most summary terms what it is that the Google search engine does. I'm going to try what I'm sure is a rather ham-fisted summary, and you can tell me whether, broadly speaking, I'm correct. Is it right that your service works by first of all crawling through Internet web pages, indexing those pages and then, when a user enters search terms, drawing from the index using algorithms those sites which you think best match the search terms that the user has inputted? MS KELLER That sounds perfectly right. LORD JUSTICE LEVESON I'm not sure about the word crawling, given the speed at which it operates, but MR BARR I'm certainly going to quit while I'm ahead there, sir. If we move on now to removal, if someone applies for something to be removed from the search engine, what they're in fact asking you to do is to remove it from the index that I've just mentioned? MS KELLER Right. They're asking us to remove it from the search results that they'll see if they enter a search term that would have brought up that web page as a result.
Q. I see. Can I ask exactly how that works? If someone wants to complain about a search result which is being thrown up because the content of the web page which is being offered is, for example, defamatory, how does a user go about doing that? MS KELLER Yeah, so I'm glad to explain that. I think I can clear up a lot about how that works. Let me start by saying that obviously Google is not the Internet so what I'm going to describe isn't a way to make a website come down. What we are doing is reflecting in our index the content that came from these third-party sites that are put up by someone else that we have no editorial control over and so forth. We're just attempting to sort of neutrally index them. So the process I'm going to describe is the way to stop a search result from showing up on Google, on sort of our little corner of the Internet, but it doesn't change the fact that it's out there and that a user might find it by following a link, you know, from Facebook or Twitter or from an email. So there are two basic processes that I'll go through and each has a different public-facing tool that can be used to get something removed from Google's search results. The first is a process for webmasters, so this is for the actual operator of the website, the newspaper in the case of a news website. If a webmaster puts something up and does not want it to appear in our search index, it's really important to us to make sure that we honour that intention. It's a fundamental tenet of our business and I think of every big search engine, of every responsible search engine's business to honour that webmaster's intent. In the first place, if they don't want it indexed, there's a technical standard they can use to say, "Hey, Google, don't put me in your search results". LORD JUSTICE LEVESON That's for a particular story or a particular web page? MS KELLER It's for any particular page, or for an entire site. The webmaster can choose, at whatever level he or she wants to, to say whether or not something should be indexed in our search results. But supposing they didn't do that, they published something and they want to retract it, the sort of slowest and easiest option is they just take it down off of their website, and the next time we crawl the website, the next time we visit it, our results will be refreshed and we'll show that it's gone, or that the page has different text now. Assuming that there's a more urgent need than that to take it down, we offer a public-facing tool that's called the cache removal tool, and I don't think that was in the evidence we submitted but I'm happy to get you the url or a screen shot. The webmaster can go to that tool, type in the web address, a little more information and click a button and say, "Google, get this out of search results as soon as possible", and we do that, we get it out quickly. If that, for some reason, were to fail, we have people who can help to accelerate this, because, as I said, it's really important for us to do what webmasters want, to not index them if they don't want to be indexed, and also I would say that for a person who is the victim of defamation or of bad content online, this is by far the best option because it means you've gone to the webmaster, they've taken down the content where it sits, they've solved the problem at its root, and at that point getting it out of Google's index is sort of clean-up. That's the first scenario. The second scenario, and what I think that you've heard about here, is if the content is appearing on a website, again a third-party website that Google indexed and has no other relationship with, other than being an indexer, and the individual who is the victim of, say, defamation on that site wants to get it taken down and the webmaster isn't responding, for example, then they can come to Google, using the tool that's called I think it's called "removing content from Google", the one we had a screen shot of it in our evidence submission, and that also is just sort of you fill out a form, you name the url, you can tell us which product which Google product you're talking about, what the basis is, and click a button and submit it, and that comes in to a team in Mountain View and we review it and we take things down in compliance with UK law. I should also elaborate that although we think it's sort of best for people to use that site, because it's a very efficient process, it automatically gets added to a queue for review, we really have our ears open everywhere to pick up complaints. So if somebody were to send a paper letter, say, to the UK entity, they would send it to me in Mountain View and we would follow up and apply UK law. And so that is the mechanism for getting web search removals in the UK. The final thing I would add there is of course we get complaints that are in the form of somebody saying, "Hey, take that site out of your index, it's defaming me", but what we also get, and what is better, I think, as a policy matter, is people sending us court orders not against us, but orders against third parties, saying, "Look, Google, I went to court and a judge looked at the facts of this case, a judge weighed a public interest defence" or whatever other complex questions of law might be raised there, "and the judge said that this is defamatory", and it's our clear policy to honour those court orders and to process removals based on that, and it's very helpful to us because it takes us out of the sort of looking at this "he said, she said" situation. We submitted in our evidence the Metropolitan Schools case, where Mr Justice Eady discusses exactly this issue, the sort of difficulty of having a technology intermediary confronted with making a decision about a defamation claim. LORD JUSTICE LEVESON A judgment rather than a clear answer. MS KELLER So receiving LORD JUSTICE LEVESON Yes. MS KELLER If we can get a judgment from a court, that's so much better because it tells us what to do. LORD JUSTICE LEVESON Yes, I understand. What you want to avoid having to do is yourself making a judgment, because you're not in a position to do that. MS KELLER Yeah, if we can. LORD JUSTICE LEVESON But do I gather that each of the examples you've given me requires the knowledge of a url? MS KELLER Yes. Yes, they do. LORD JUSTICE LEVESON So if somebody were to come to you and say, "Listen, I've been hideously defamed, and as a result a story has gone around the world about me and I can prove that it's in breach of my privacy rights or whatever, but I can't identify every url, that would take me forever because I can't find them, or whatever", actually you can only work on urls? You can't then do your own search to find out where it is? MS KELLER We do get people coming and asking for that, and as you can imagine, we are not in a very good position to look at every url and figure out LORD JUSTICE LEVESON I understand, I understand. MS KELLER The thing yeah, so getting urls is sort of the starting point, and lets us know a person in a position to make judgment and maybe it's just the complainant, you know, the person being defamed has looked at this and said, "This is one of the ones that's bad, and this is one that's bad, and here, Google, take it down". LORD JUSTICE LEVESON I'm going to interrupt one more minute, Mr Barr, and go down a bit of a siding for the Inquiry, perhaps, but I can't resist the opportunity. In this country, there is a real issue about what juries learn in criminal cases, and before Google and before this ability to search, it's true that you could go to a newspaper archive and flick back through all the old pages and find out about the criminal history of a defendant, and find out what it was said he'd done or not done, but of course nobody did that. But now, where we don't necessarily allow our jurors to know about background history of our defendants, it's very easy for somebody to go on a search engine, type in the name of the defendant and then find all sorts of details, and you may be aware that only this week, in this country you may not be aware, but Mr Collins may be a juror got into a great deal of trouble for doing just that during the course of a trial and so disrupting the trial. Now I'm sorry to everybody else is there anything that can be done about that problem, or is that just in the too difficult box because of the reasoning you've just explained? MS KELLER Yeah. I think so we have the same issue in the United States and the same question about what information should be accessible to jurors. I have not heard a proposal more technically tailored than the idea that one might disappear content from the entire Internet or from the entirety of Google search results so that no person can see it in order to protect this one juror from violating a sworn obligation not to go look for it. So as a technical matter, I'm not aware of any proposals that narrowly get off that one juror. As a legal matter, I've heard a little bit about this UK case, where I believe the juror was found in contempt. There are legal obligations on the jurors already and consequences for going out and doing this, so I should hope that the answer lies there. LORD JUSTICE LEVESON Yes, that's how we're dealing with it, but I'm interested that the same problem arises in the States. There isn't a technical way through, is what you're saying to me? MS KELLER Not that I know of. LORD JUSTICE LEVESON All right. I apologise for that, but it's rather topical. MR BARR Certainly no need to apologise, sir. You explained that it is useful to you, when receiving a complaint from a third party about content, deciding whether to remove it from the index, to have a court judgment. Can either of you recall coming across a case where a complainant had submitted a decision of the Press Complaints Commission? MR COLLINS I'm not aware of one. MS KELLER No. LORD JUSTICE LEVESON Would that be sufficient? A regulator that raises a question, but if there was a regulator who made an order saying that the newspaper had infringed the privacy in this way or that way, would that be sufficient for your purposes? MS KELLER To be honest, I'm not familiar with the Press Complaints Commission, so we would have to look at it if it came. LORD JUSTICE LEVESON All right. MR BARR Can I ask you then about the case which you would rather not see but presumably do sometimes see, which is when a person writes in and says, "Look, your search engine is throwing up results directing users to defamatory material about me. I say it's defamatory because and that's all you get. Do you have a legal team who will consider that, applying UK law and deciding whether or not in their opinion it is defamatory? MS KELLER Yes. We operate in a regulatory framework that includes things like the E-Commerce Directive and implementing legislation for that, and we follow a notice and take down system. So if we receive a notice without a court order, which we certainly do, then we look at it and we apply UK law for the UK service, obviously, as best we can. That's me, that is my team in Mountain View doing that, but of course taking extensive advice from outside counsel and counsel in the UK.
Q. Can I ask you touched upon it in your answer, you said taking down from the UK site or from the UK search engine. Does that mean that when you make a search on google.co.uk for the defamatory article, it won't be produced by the search? MS KELLER (Nods head).
Q. But if you deliberately circumvent the automatic redirection and go to google.com, you will still be able to find the defamatory material? MS KELLER Assuming that it is lawful under US law and we haven't received a complaint under US law, assuming those things, then yes. Let me talk a little bit about why I think that is the right outcome as a policy matter. We you can imagine a world in which we or other Internet companies undertook to apply all countries' laws to all versions of our service, so that a user in the UK on the google.co.uk domain would see search results that had been filtered effectively for the laws of Japan and the laws of Chile and the laws of France and so forth. So the third-party websites that show up in our search index that are perfectly lawful for a UK citizen to see would all be missing. It would be a lowest common denominator of lawful speech. This isn't an outcome that I think most people want to see, and this is the basis for our dividing our services in the way that we've described.
Q. Understanding the rationale for the system, if we take the example of someone who is famous internationally we've heard evidence from a man, Mr Mosley, about whom a video which invaded his privacy went viral and spread globally would it mean that somebody in his position, as well as having to try and deal with the individual websites that were posting the material that was offending, so far as Google was concerned, to have it removed from your search results, would have to make an application in respect of each jurisdiction in which that content was illegal? MS KELLER It does. I would hope that wouldn't be a terribly difficult thing to do, and I can tell you that in his case we have removed hundreds of urls, although I agree you referenced him going to the individual sites and trying to get them down, and I have to say that because Google isn't the Internet, taking it down out of our search results doesn't make it disappear, that is the right way to get at it and get the content to actually come down from the sites that did put it up.
Q. Would it be right that if the video was considered legal in any of the countries in which you operate, it would remain accessible using the Google site for that country? MS KELLER Yes. If there's a country whose law says that that should stay up, then in that country we would comply with that law.
Q. So effectively the opposite effect of what you described as the lowest common denominator, if someone is prepared to look in the right country? MS KELLER I suppose you could put it that way.
Q. Can you help us with some indication of how quickly you are able to deal with notices asking for material to be removed? No doubt there is a variation according to whether or not it's obvious whether thought needs to be given and so on and so forth, but can you give me a range from best to worst of how long the process takes, please? MS KELLER I don't have specific numbers. I can tell you that we've been getting steadily faster. We've made a lot of improvements both to the tools the public tools and to our internal processes. Actually, often a lot of the volume that can keep us busy comes from copyright complaints, and over the past year we launched what we call our fast-track process for copyright that has greatly accelerated sort of new technologies to greatly accelerate the intake and processing of those complaints, and that speeds everything up greatly.
Q. I think I probably should have refined my question. We're primarily interested in privacy and defamation complaints. What sort of turnaround would you expect for those? MS KELLER Sorry, I bring in the copyright thing only because it adds to the queue. We process all of the complaints as they come in, and if there's sort of a glut from one source, that would cause it to slow down. But because of that tool, we've gotten considerably faster. Of course we're constantly expanding the team that does this within the legal department, and we have we improve tools like the user form that I submitted with the testimony. So it's getting steadily faster, but I don't have the exact figure.
Q. For a case which involved a submission with a judgment, are we talking hours, days, weeks or months? MS KELLER I think we're talking days.
Q. And for a submission which wasn't backed by a legal judgment, it was just a submission to you that something was defamatory? MS KELLER I think in those cases we're also talking days.
Q. It's right, isn't it, that whenever you receive a notice asking you to remove content from your search results, you send a copy of the application to chillingeffects.com? MS KELLER That's correct, with the personal information of the sender redacted.
Q. Of course. And the purpose of that is? MS KELLER So that Chilling Effects is a third-party public interest organisation, and as their somewhat loaded name suggests, they have a mission to document the ways in which content disappears from the Internet, or at least I think they apply it more broadly to the Internet. I know that they are trying to document the ways in which results disappear from our corner of the Internet, namely the search results. And so they maintain a database of the removal requests that we've received.
Q. In short, these are people who are monitoring censorship of the Internet? MS KELLER I don't know if I would put it that way, because they're monitoring removals, whether legitimate or illegitimate. I don't want to sort of put a cast on whether it counts as censorship or not.
Q. I see. MS KELLER I would note there's been a tremendous amount of scholarship that's come out of their database. They recently submitted an Amicus brief in a case and the brief was basically a three-page string citation to different academic articles written using their information. One that may be relevant here, this was years ago, a couple of outside scholars looked at it was actually Google's copyright removals, but this observation would apply to other kinds as well, you know, looking at the copies of letters that were on Chilling Effect, and they concluded that over 30 per cent of the letters received and processed were from competitors trying to use the law as an excuse to take down each other's websites. So they're documenting both totally legitimate uses of the law to remove things from search and also ways in which the law can be abused as an excuse to try to take down lawful speech.
Q. So, as the name suggests, looking at chilling effects. What I want to know is if Google is working in close partnership with an organisation which is considering chilling effects on the Internet, what does it do to help look into the destructive effects of abuses of the Internet on individuals? Is there any equivalent activity that Google is involved in? MS KELLER We've had a number of efforts recently to help users protect their privacy online. I think DJ can probably speak to these more MR COLLINS I can speak to a couple of examples. In the UK recently, we ran a very expensive, widely publicised campaign called "Good to know", and this was a very simple set of tools for people to remain safe online, through whether it's privacy protection or securing their email accounts not specific, by the way, to Google, but generally how to maintain their identity on the Internet. So in terms of the investments that we're making, we ran the same campaign in Germany, where I think if you enter Germany, discussions around privacy generally in society are very intense. We've just launched the same campaign in the US. We'll be doing the same in Italy by the end of next month. So in terms of the tools and the investment and the advice and the education that we make for users to maintain their identity online I think in many ways outweighs the relationship we have with the website that you mentioned.
Q. That's privacy that you're talking about. I'm really interested in the prevention of illegal destructive content. Is there any research on monitoring work there? MR COLLINS I would have to I mean, I actually work with a team that commits significant investment to a large amount of very long-term academic debate in all areas of Internet regulation, internal policy. I would rather than give you an answer that is incorrect now, I would want to go back and look at the investment that we're making in academic research, which, as Daphne has said, is relevant to the website that you mentioned, and then supply after, if it's okay.
Q. If there is any relevant research we would be very grateful to receive it. Thank you. MR COLLINS Thank you.
Q. You provide in your exhibit, Ms Keller, at tab 3, some statistics I'm afraid certainly in my bundle they're very difficult to read. A shot from a screen about requests from the United Kingdom for content to be removed. And these are, as I understand it, requests from all sides of the UK state, including courts; is that right? MS KELLER That's right.
Q. I'm not going to go into great detail MS KELLER That's good. I can't read it either.
Q. Certainly a very high percentage of requests appear to be complied with. 65 content removal requests with an 82 per cent compliance rate. It would seem, certainly in the period that this was referring to, January to June of last year, that the single biggest category appears to have been national security matters. Matters of privacy also feature reasonably strongly, is that fair? MS KELLER I think that is fair. I'm sure if you can read it that it's correct.
Q. Can I now pick up a little bit on the question the Chairman asked you a moment ago, about Google's attitude towards domestic regulators, media regulators? You've explained that you haven't come across the PCC in practice, but can I ask you about the future? First of all, and this is in relation to your search engine, if there was to be a future regulator of the British media, which was to consider a complaint by an individual about, say, a newspaper and its online content, and to rule against the newspaper, what is Google's attitude likely to be to the weight that it would attach to the ruling of such a body, if it was applying an agreed press code, if such a ruling was deployed to support a request to remove a site or an article from your results? MR COLLINS It is an incredibly interesting question. I think it gets to the nub of what the Inquiry is looking at. I don't want to get into the sort of position of speculating about what the regulation might look like, or whether it's backed by law or not. I think, with a process like that, we would look for exactly the same things that you would look for, which were robustness, that justice is being done, that there's fairness, that there's that people get to the truth of the issue. I don't want to speculate what our submission to that idea might be, or our reaction to it might be, because I'd want to look at it in a great deal of detail. The one point I would make is that we obviously, with our UK services, comply with UK law, but I would want to have a very serious think about a process like that before giving you a full answer. So maybe as you develop the ideas for a process like that during the Inquiry, then we could give you some evidence written into the Inquiry
Q. I can certainly accept that it's unfair to ask you to go into any detail, but would it be fair that from the principles you've enunciated, that if it was something that was working to UK law, you would in principle be content? MR COLLINS As we said in our submission, we comply with UK law in this country. As I said, I would want to look at the process in some detail and give you a really full answer. LORD JUSTICE LEVESON It follows, therefore, doesn't it, that what was backed by law would be more effective in that regard than something that wasn't backed by law? MR COLLINS I think as MS KELLER Yes. MR COLLINS in summary, as Daphne said, again I don't want to speculate on something that hasn't been fully developed, but as Daphne said at the start, we prefer for removing results from our search index, it's much better for users if those judgments have been made by essentially a court or a legal process that has weighed all of the evidence, that has been robust, that has been fair and that justice is done, and then the result is not just, by the way, handed to a search engine, but handed to the webmaster and the other entry points to the web. I think there is just one point I would like to make, Mr Barr. Google is, as Daphne said, Google is not the Internet. We're also not the only entry point to the Internet. There are now multiple entry points to the Internet. I think it's fair to say there are more entry points to the Internet now than there were when Google was started 12 years ago. So whatever robust system that you recommend will have to cover all those multiple entry points, not just a search engine. LORD JUSTICE LEVESON Yes, I quite understand that, and I appreciate that you are rightly careful. That's entirely appropriate. Of course, to some extent I have a chicken and egg here, don't I, because if something is going to be more effective one way, then that might drive me more in that direction. If it's going to be less effective, then I'm going to be moving away from that all other things being equal, which of course they're not. But it may be that in your answer, you've identified something of significance, because you're right, there are many, many different search engines, and many different entry points to the Internet. Of course whatever order was made would bite the webmaster, because if it was a newspaper or whether published in print or not in print, or just online, you'd have wanted them to be part of the debate. But how one transmits that to everybody is a slightly different problem. MR COLLINS Yes. LORD JUSTICE LEVESON And therefore may require, for that reason, somewhat more authoritative backing, if I put it like that. MR COLLINS It's a very interesting question, sir. The first principle, as Daphne has rightly set out, is that ultimately the person that publishes that content to the Internet is ultimately responsible for the content that they've published. I think that's the first principle. But it's a very interesting question, and as I said, sir, as you develop your proposals around the system that you just outlined, we'd be very happy to submit some written evidence in time, if you asked us to. LORD JUSTICE LEVESON Hang on, let me just work that out. So if I have some provisional view, then I could ask you to provide some provisional response to my provisional view? MR COLLINS It sounds very provisional, but LORD JUSTICE LEVESON Well, it is because this is back to my chicken and egg. I will need to know that whatever I suggest is going to work, and it won't help me if six months after I've published a view, you come along and say, "Well, actually, this doesn't work, but if you'd done it this way, it might have worked". MS KELLER Just to reiterate a point that DJ made, first, ultimately, we will comply with what UK law requires. But what we would hope to see in such a process are the same things that I'm sure you're thinking about already, you know, an opportunity for the publisher to defend himself, an adversarial process, a collection of facts, application of public interest defence. This is not news to you. LORD JUSTICE LEVESON It may not necessarily be adversarial, it may be inquisitorial. I'm sure you understand the difference. This Inquiry is inquisitorial. Of course, there are serried ranks of the press here to make sure their interests are protected, but it's a question of how best to achieve the result when a complainant might not have the benefit of legal representation, and therefore there's a mismatch of power. MS KELLER Right. LORD JUSTICE LEVESON But there would have to be a process that was fair, that was fully compliant with the right to be heard, and that comported to a set of principled I won't say laws, but rules, which themselves were bounded in respect for all the elements that you would want to see, privacy, freedom of speech, freedom of expression, everything. I don't believe that there would be anything that we would suggest that you would not find entirely compatible with your concerns of fairness, although whether it goes quite as far as your First Amendment is different, but that's a UK position rather than MS KELLER Of course, a different country, different laws. LORD JUSTICE LEVESON That's the point. MR COLLINS If I can, I think in summary, as your recommendations apply to services like our own, of course we'll take a very close interest and I'm sure we'll if you ask us for our advice, then we would very happily provide it, sir. MR BARR Can I ask you, given that you have a multinational portfolio, either of you if you can answer, does Google take into account the decision of any foreign media regulators when considering removal notices? MS KELLER I cannot recall ever seeing an example of a media regulator being a basis for a removal, so I think it just hasn't come up.
Q. So either way? MS KELLER Yeah.
Q. Okay. Can I now move on from the questions I've been asking about your search engine to look at some, but not all, of your other products? I'm going to start with those which are closely related to your search engine because they also work on search principles. First of all, Google Images, which is a product for searching for images. What I'd like to ask, first of all, is if someone wants to ask for an image to be removed from your search engine, from Google Images, is the process the same as the one that you've outlined for Google Search? MS KELLER Yes, it's exactly the same, the same web form, the same team at the back end assessing the request.
Q. If the request relates to a url, as I think I've understood correctly it must, what happens if the image is being hosted by multiple websites or if there is someone who is prepared to repost the same image on another url as soon as it's removed from the search results of the original the original url is removed from the search results? Is there anything that you can do about that? MS KELLER Much as I described for Web Search, because we're not the Internet, we're just reflecting what's out there on these third-party sites, and we are not in a position to assess whether each of what the legal defence is for each of them. We undertake to remove based on the complainant, or a court order, identifying the urls. I think what you're getting at is maybe the idea that there could be a way to identify if the same image exists on multiple urls and sort of automatically make them all disappear from our search results at the same time.
Q. Mm. MS KELLER The first part of the answer is we don't have a switch that we can flip, or a button we can push to make that happen. But I think a second and important part of the answer is I'm not sure on policy grounds that you would want such a thing to exist, because while our algorithms, our computer programs are quite good at identifying when a page is relevant to a query, the kinds of things we work on, they're not good at making the kind of judgments that the judge or a court or a human would make about the context in which something appears. So they won't necessarily distinguish between a particular image or a particular text phrase used in news reporting or scholarship or art criticism compared to when used in some other context. So if there were to be this sort of the switch that you flipped to make all duplicates disappear, I think that an inevitable result would be overfiltering and would be the suppression of perfectly lawful content to the detriment of the webmasters who put up that content. A small business, a small newspaper, losing its traffic from one of the major search engines and losing a lot of readers because of sort of overbreadth of technical filtering. If I could offer a personal anecdote on this, I am a mother of two young children, and I miss them when I travel like this, so last night I used my mobile phone to try to look at some pictures of them, which my husband uploaded you know, they're our pictures, we took them, and my husband uploaded them to Flickr, which is a photo hosting site owned by Yahoo, and the mobile carrier gave me a message saying that I couldn't see them unless I attested that I was over 18 and then another message saying I was not allowed to attest that I was over 18. So I was technologically blocked from seeing pictures of my own children that I took and that my husband uploaded. This is, I think, an example of the kind of technical error and overbreadth of filtering that can arise through perfectly good intentions.
Q. Accepting the technical difficulties and the potentially unwanted results which you've just explained, does Google have, if we take perhaps Google Videos as an example, in the Max Mosley case, if one was trying to search for the Max Mosley video on Google Videos, is there a way of blocking certain combinations of search words, so that it would be quite acceptable to allow through Max Mosley Formula 1, but you wouldn't get a result if you put in Max Mosley and then words to try and single out the offending video? MS KELLER That also is something that we don't have. We couldn't throw a switch and do that, although I assume that an engineer could build it in theory, but I think that that has perhaps even greater potential for overbreadth we submitted in our evidence the Metropolitan Schools case which talks about a very similar case to filter all results for a particular pairing of words, and the court noted that there were a number of totally unrelated and totally innocent sites that would have disappeared had it been possible to implement that request. I think in the Max Mosley case, obviously there's been all kinds of news coverage about this very Inquiry, and other coverage that is legitimate and that you wouldn't want to disappear from search results.
Q. Can I move now to Google News, please. First of all, I'd like to get a summary as to just what the process is. If one if goes to Google News, what's happening behind the scenes in a nutshell? MR COLLINS Okay, I'll attempt not to be overtechnical. For instance, if I wanted to find out news about this Inquiry, I would I could either go to the Google Search home page, put in "Leveson Inquiry". Within those page of search results, some of them would be news search results. Or I could go to Google News, which is dedicated to making queries amongst news content. So I put in that query. We then serve back to you what we think is the most relevant information linked to the query that you've made. To be more specific, if I put in, say, maybe I'm interested in a particular football team and I follow a particular player and I want to track whether that person is injured for Saturday's game or not amongst the news, I put in the name of that person into Google News, and then at the back end our algorithm works very hard to serve back to you links to newspaper or other news content websites that is most relevant to that query. It's also important to explain what we're not doing. We're not producing that news ourselves. We're merely producing the relevant links to the most relevant information that we think you're looking for. LORD JUSTICE LEVESON I was about to say "merely", but I don't say "merely". It is a subset of the general search of Google? MR COLLINS It's part of Search. LORD JUSTICE LEVESON It's a restricted search on news MR COLLINS It's a more refined search, but it's essentially part of Google Search, absolutely. MR BARR If you're not creating the news, writing it yourselves, as has been pointed out part of the search technology, the algorithm is very important, isn't it? It operates something as a remote automated editor, doesn't it, in what is served up to the user? MR COLLINS Not
Q. Can I ask you, does Google accept payment to promote particular news results in response to searches from news organisations? MR COLLINS Absolutely not. That's absolutely not what we do. Also, if I may just pick up on what word you used sorry, two words, "remote editor", it's really important to emphasise this isn't editor in the sense of many of the people who have given evidence in the Inquiry. We don't have an editorial board for Google News, we don't have an editor saying, "I'd really like to promote that particular link" or "Let's push that particular piece of content up the rankings because my sense is that's what people are looking for".
Q. It's a computer programme? MR COLLINS Absolutely right. But just to re-emphasise, we absolutely do not take payment for rankings in Google News, just as we don't take payment for rankings in other parts of that natural Web Search result.
Q. And so is there any other way by which Google will filter out particular news content or otherwise promote one sort of news over another except for simply trying to match the search terms? MR COLLINS I will come to Daphne's world in a second, but as you said at the end, what we're trying to do is to provide information that is the most relevant to the query that you've made, and again I want to emphasise, not to you, but to the query that you've made. That's the criteria. We don't say, "We don't like this particular newspaper this week", someone sits in an office and says, "Let's just take those people out"; that's not how it works. In terms of content, which is the subject of the discussion Daphne's been having with you around removals, obviously there's a process for that form of content, and if you're the webmaster of an online newspaper or a newspaper's online site, then you use the tools that Daphne has outlined to refresh content, for instance if you've taken something down because it's been found to be defamatory, but I want to underline the central premise of Google News just as the central premise of our overall search service is relevance, not whether we like a particular newspaper or not. Doesn't come into it. MS KELLER Just to fill that out, we do legally based removals from Google News if that comes up as well on exactly the same model I've described before. I can't tell you the number of times I've looked at the results for the word "Google" on Google News and there have been a number of things that I disagree with. But we don't have people making choices about that. MR COLLINS It still appears. LORD JUSTICE LEVESON You don't censor your own content? MR COLLINS No, we don't. MR BARR That's reassuring. Can I move now to blogging.com, which is owned by Google, isn't it? MR COLLINS Yes. MS KELLER Yes, it's blogger.com, but yes.
Q. It's a service which allows a user to set up and run a blog? MR COLLINS Yes.
Q. Who do you regard as publishing the content on the blogs? Is it the user or is it Google or is it both? MS KELLER It's the user, and sort of to make the comparison to Web Search, as I described before, Web Search is us being an intermediary, a technical indexer of third-party content that's hosted on third-party machines. Blogger is us providing a hosting platform for third-party content that's hosted on our machines. So it is different. It's on our machines. We didn't create it, we didn't write any of it, we certainly don't have time to read it, given the scale at which it's uploaded, but we do host it and have the power to take it down, and do when appropriate. What's the same about Web Search and Blogger is the notice and takedown framework that I described. In both cases, the same web form that I've shown you, where you can check the box to say, "My complaint is about Search", you can also check the box to say, "My complaint is about Blogger", and consistent with the E-Commerce Directive notice and takedown framework and the implementing legislation in the UK, we operate the same kind of notice and takedown process. LORD JUSTICE LEVESON The process is the same but the result is different because this time you actually kill it, you take it down. MS KELLER Right. So, I mean, unless there happens to be a different copy that someone has hosted somewhere else, it actually is solved at the root. MR BARR Do you permit on blogger.com anonymous blogs, or do they have to be blogged in the real name of the person posting the content? MS KELLER They are pseudonymous? MR COLLINS I don't want to give you the wrong answer. I will check and then come back to the Inquiry afterwards. MS KELLER But I'm sure we have bloggers blogging under names that are not MR COLLINS Yes, I think MS KELLER their real names. MR COLLINS I want to give you the right answer. MR BARR It's certainly a very popular service. From a recent judgment I've taken the fact that it has half a trillion words on it and 250,000 words are added every minute. Do they sound like familiar statistics? MS KELLER That sounds plausible. LORD JUSTICE LEVESON So one would understand why you can't read it all. MS KELLER Right. MR BARR All of that is accessible to UK users, is it, wherever in the world the blog is posted? MS KELLER Mm-hm.
Q. Does that mean, again we have the same trans-national issues, where if a blog is contrary to the law of one country, you would take it down on, for example, the UK side, or does it work differently, is it just blogger.com, or do you have blogger.co.uk? MS KELLER At present, just because of the way that product was technologically designed, it only has the.com domain.
Q. So which law do you apply when deciding whether to take down a post? MS KELLER If we determine that something is in violation of UK law, we do take it down.
Q. If it's a UK post. What would you do if it was a French post saying something defamatory about an English person? MS KELLER I don't think we would draw a distinction based on the origin of the post. I should double-check that and get back to you, but I'm fairly confident sorry, I represent the web search product, so I'm reaching a little here.
Q. Fine. I'm asking searching question, if you'll forgive the pun, and if you wish to put the answer in writing, that would be helpful, but I'm interested in what the test for jurisdiction is, as to which law you apply. If, in relation to Blogger, you are also an Internet host, could I now pose another hypothetical future regulatory question to you based on your Blogger service? If there was to be a future regulatory body in this country, which was going to adjudicate on defamation and privacy complaints, would Google and I'm not going to hold you to a firm answer consider and what sort of considerations would you apply to the question of whether Google would be prepared to be a part of that system, to be prepared to respond within the regulatory system to complaints about blogging posts on blogger.com? MR COLLINS Again it's a very interesting question. I think there are two essential parts to this. Firstly, there is a very clear set of regulations which apply to technical intermediaries hosting platforms. It's called the E-commerce Directive and it does place a number of responsibilities on us around removal of content. I know that you're very aware of it. It's important to make the distinction between in the system that you've outlined, it's important to make the decision between someone who provides a hosting platform for other people to create and post content, and a publisher. Blogger.com or other products that are attempt to form a community around the product, YouTube, et cetera, they don't make us a publisher; we remain a hosting platform. So I think whatever system that you devise, it's important to retain that distinction, because not only is there already a very clear set of regulations around those principles placing responsibilities on us, but it retains a very essential balance online, which is: where does that responsibility lie? We have our responsibilities, which we fulfil; the person that produces and uploads that content has his or her responsibilities as well. So again, it's this is obviously a hypothetical scenario, and something I know that you're working through as you work through your evidence. Again, I would give the same answer that I gave to the Lord Justice, that, as you develop your system and as that regulatory proposal affects our services, we would be happy to supply written evidence if you asked for it.
Q. A short question about YouTube. It's owned by Google, isn't it? MR COLLINS Correct.
Q. That service would your answer be the same? do you regard yourself as hosting the content rather than publishing it? MR COLLINS Correct.
Q. When you go on to YouTube, you do get an image on the screen, which you then click on to watch the video. Do you regard yourself in any way as publishing at least the thumbnail image or do you regard yourself purely as the vehicle for somebody else's publication? MR COLLINS I think I would give the same answer that I gave before, that and as Daphne gave around Google Images, which is again we're the technical intermediary, we're the hosting provider. We're not ourselves publishing that content, and I think under the E-commerce Directive and the judgment you referred to earlier sort of underpins that. MS KELLER The thumbnail is part of the processing that we provides a the host. I don't know if this has come up under UK law, but it has under the sort of analogous provisions for copyright of US law and I think there's a general understanding that hosting includes showing a thumbnail or video MR COLLINS Presentation MS KELLER or whatever the sort of normal processing would be. MR BARR Sir, I've very nearly finished; will you indulge me for a few minutes, please? LORD JUSTICE LEVESON Certainly. MR BARR Can I come on now to a separate topic. It's dealt with at the end of your witness statement, Ms Keller. It's about the concept of self-regulatory traditions, which are developing on the Internet. I've been posing questions about more formal regulation, but perhaps you could tell us a little bit about what you mean when you say that the Internet has also developed global self-regulatory traditions? MS KELLER I will give you a couple of examples, I think DJ may be able to provide some others. I'll start from the bottom up with self-regulatory traditions that came from the engineers who built the Internet and the primary one that really affects us is the robots.txt protocol, which I mentioned earlier, which is the way there's actually technically two varieties. You can use robots.txt or something called metatags, which is text in the source code of a page that's not visible to the user. Used following a standardised protocol that every webmaster can follow the same way, that every search engine can understand, for webmasters to give instructions saying, "Don't index me", or they can vary a little, they can say, "Index me but don't show a snippet", or things like that, so that's a sort of a foundational example in the world we operate. An example that comes closer to the kinds of things we think of as regulation is the work done by groups like the IWF, the Internet Watch Foundation in the UK, and some comparable groups like the BPJM in Germany and Nikmeg(?) in the US. The IWF is primarily private, I think almost all of its funding comes from corporate members, and it creates standards for creating and disseminating lists of urls with child abuse content, very abhorrent content, so that we can get those lists disseminated quickly to every who might need to act to them. It's a pretty effective example of a self-regulatory body that came together through industry agreement. DJ, I think you MR COLLINS Yes, I think it I would say a couple of things. Firstly, the Internet is very well regulated in two ways. There is regulation, and we've been discussing what future regulation might look like, and that is really embodied by principles around the E-commerce Directive. The European Commission's published its proposals for online privacy regulation, but so it's important to emphasise we don't think the Internet should just be self-regulated. There is already a body of very tight regulation, particularly in areas around data. But self-regulation is also important, because regulation doesn't cover everything, and we see ourselves as a responsible company. We work very closely with the IWF, but also other bodies. I can think of some an example in the UK that we've been involved in with the Advertising Standards Authority, so to making sure that online advertising is being checked in the right sort of way, and we play an active part in that, but also in terms of global governance of the Internet, there are very well established forums such as the Internet Governance Forum, the IGF, where every year a collection of government and NGOs and Internet companies come together and work out where the new responsibilities should be lying. So both traditions are important, but I don't want to imply and neither of us want to imply that in some way we think it should just be self- regulated, because LORD JUSTICE LEVESON The regulation you're talking about is slightly different. You're using the word in a slightly different sense. What you're saying is that there need to be common standards, common agreements, common mechanisms that work for everybody, because if they work for everybody, then they will work for everybody. If everybody goes in their own direction, there is a risk for chaos. MR COLLINS That's right. LORD JUSTICE LEVESON But there isn't anybody to police it, it's what you all do in order to achieve the common good for all. Would that be fair? MR COLLINS Correct. I think it's robust in some areas and I think, if I may, if you look back at the technology developments for the last hundred years, this has been a very common theme; it's not just relevant to the Internet. But a lot of my work and a lot of my team's work, and I work very closely with some of the people that you're going to be hearing from this afternoon, and we take these issues very seriously, because I come back to something I said right at the start, that the trust that we have with our users is very, very important, and in some cases the regulation goes obviously so far, and but we don't always just rest with where that regulation lies. Sometimes we think we can tighten up even further, or because our technology understanding sometimes runs a little ahead of some regulatory bodies, we want to do it before there is a need for statutory regulation. MR BARR Thank you very much, both of you. Those are all the questions that I have. MR COLLINS Thank you. MS KELLER Thank you. LORD JUSTICE LEVESON Thank you very much indeed, and thank you again for coming. I'm sorry to deprive you of the sight of the pictures of your children. MS KELLER I'll see them soon. Thank you. (1.07 pm)

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Witnesses

David John Collins

Journalist & Media

Gave a statement at the hearing on 26 January 2012 (AM)

Public policy and communications expert and at the time of the Inquiry Vice-President of Global Communications and Public Affairs for Google. Collins gave evidence on Google’s privacy policy, its removal policy on the UK (as opposed to US) site and its continuing evolution.

Christopher Graham

Victim

Gave a statement at the hearing on 26 January 2012 (AM) ; and submitted 40 pieces of evidence

UK Information Commissioner from 2009 to 2016. Told the Inquiry that proposals for tougher data-protection laws could have a negative effect on investigative journalism and that he would oppose the Information Commissioner’s Office becoming more of a regulating body.

Daphne Keller

Journalist & Media

Gave a statement at the hearing on 26 January 2012 (AM) ; and submitted 7 pieces of evidence

Keller was employed as a legal director at Google at the time of the Inquiry. She gave evidence on search engines and Google policy on removing content. Keller has taught Internet Law at Stanford, Berkeley and Duke law schools.

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Morning Hearing on 26 January 2012

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Understand all the key topics and the context behind the Inquiry's findings