(10.00 am) Discussion
LORD JUSTICE LEVESON
Good morning. Before we start, I want to say that I am extremely unhappy about the way in which yesterday afternoon did what I perceived to be damage to the appropriate flow of this Inquiry. I am not willing to allow what is an obvious conflict between one of the core participants and another to divert attention from my concern about the customs, practices and ethics of the press. To some extent, that conflict may evidence customs, practices and ethics, but there is a limit. I am not entirely happy that the Inquiry was bombarded, on Friday, with a variety of statements dealing with historical and other issues going to the conflict, albeit that I understand why the relevant participants feel that what has been said requires them to answer by way of defence. I will allow, given all the circumstances, some further time to this issue, not because it necessarily illuminates my understanding of the fundamental issues which I have to address, but more because I believe that in the interests of fairness I must allow the matter to be ventilated for a little additional time. I won't allow this type of situation to develop again, but in the circumstances of the events that have transpired, as I say, I feel that fairness requires me to allow some further time to the issue. That will be this week. That's not negotiable. In the circumstances, I will allow until 2 o'clock this afternoon for consideration to be given to how best this can be arranged to cause minimum inconvenience to everybody, including the Inquiry. Right.
MR CAPLAN
Can I just seek clarification in relation to that?
LORD JUSTICE LEVESON
Yes.
MR CAPLAN
Are you, sir, inviting further oral evidence not inviting but requiring or are you in fact contemplating, which is what I was suggesting yesterday, that the remaining matters not the "mendacious smear", which has already been raised in evidence yesterday by counsel for the Inquiry in the way that all other issues have been raised through him whether you are agreeing that those other matters can be dealt with by written submissions.
LORD JUSTICE LEVESON
No, they can't be dealt with in writing. I'm afraid I am requiring Mr Dacre to return for a short period of time, not to go over material that was covered yesterday afternoon but I simply do not see how it is fair to the balance of the material that's gone into the Inquiry not to permit these questions to be asked. When this all arose, at the very beginning of the Inquiry, I did not visualise that we would end up where we have, and had I visualised it, I might have taken different steps, but, Mr Caplan, we are where we are.
MR CAPLAN
I understand that, but could I make a very, very brief submission? I don't want to take up your time, but this is an important point, if I may say so. Sir, we are where we are, and there seems to be an imbalance in relation to the way in which the remaining issues which Mr Sherborne wants to put to Mr Dacre, namely about the plummy-voiced exclusive story and the circumstances surrounding the birth of his daughter, are going to be treated. There have been many, many, many pieces of evidence given by Richard Peppiatt, Chris Atkins, James Hipwell and others making serious allegations about a number of papers, a number of stories, but it hasn't been the case that editors have been recalled to deal with them. The fact of the matter is that Mr Grant's statement was not seen by Mr Dacre on Friday night. He was inundated with material from the Inquiry which counsel to the Inquiry quite properly wanted him to deal with and he spent the time over the weekend dealing with those issues and general issues of importance concerning your terms of reference and the way forward. So the two remaining matters, two individual stories the plummy-voiced executive was a Mail on Sunday story. Liz Hartley has conducted an examination into that and put in evidence and, if it's absolutely necessary, I suppose could come back. The Tinglan Hong matter is a matter which we volunteered to put into evidence just to show the way in which the practices worked, because I wasn't being allowed and wasn't suggesting that I should be to cross-examine Mr Grant about it. I knew what he was going to say. I thought the best way was to put in written evidence for it to be dealt with in this way. So the concern is that recalling Mr Dacre and allowing Mr Sherborne to cross-examine him on these two individual stories is going to create an imbalance and divert, if I may respectfully say so, from the way in which this Inquiry has been conducted with all other witnesses, putting in questions through Inquiry counsel, allowing them to deal with the matter and only exceptionally, if there is a matter within your terms of reference, seeking your exceptional leave to cross-examine. Mr Dacre has given evidence yesterday for four hours. He's attended, obviously, a seminar. He's co-operated fully but I do respectfully apply that it would not be right to ask him to be recalled.
LORD JUSTICE LEVESON
A quarter of an hour yesterday afternoon was lost because of the technical problems. A quarter of an hour was also lost because on one issue, on a topic which I would have expected he would have been briefed, it clearly appeared to me that he hadn't and I uniquely said he should take advantage of the break to take some advice. So I don't accept responsibility for that. We, of course, as you know, fitted in to Mr Dacre's timetable. He was always going to be a very, very important witness to the Inquiry. The difficulty that I visualise and that I have seen, as I reflected upon it last night, is the extent of the significance attached to the "mendacious smear", which does link in to the incident involving the American lady. That's the one that it seems to me has to be addressed. As regards Mr Grant's child, I am less convinced of the need for oral evidence on that topic.
MR CAPLAN
May I just say this. I don't obviously wish to prolong the debate. The "mendacious smear" matter has been dealt with. The Mail on Sunday story, the plummy-voiced executive, has been put to the editor of the Mail on Sunday. Ms Hartley has dealt with it. Mr Dacre was not concerned in the publication of that story. He was concerned, obviously, in and has given evidence about what the Daily Mail said on November 22, and has answered questions about it through Inquiry counsel. So for Mr Sherborne to pursue the matter seems, in our respectful submission, redundant.
LORD JUSTICE LEVESON
Well, I hear what you say. Mr Sherborne?
MR SHERBORNE
I'll keep it brief, sir.
LORD JUSTICE LEVESON
You shall.
MR SHERBORNE
I will. We are where we are purely because of the public statement that was put out on 22 November by Associated Newspapers with the approval of the editor-in-chief. It was a statement attacking one of the witnesses who gave evidence to this Inquiry and accusing him of perjury. It is a matter that is of more importance and relevance to this Inquiry than purely the personal considerations of Mr Grant.
LORD JUSTICE LEVESON
That's why I've reached the conclusion I've reached.
MR SHERBORNE
Indeed, sir, and that is why I am pursuing it: on behalf of the core participant victims, not because of some personal vendetta on the part of Mr Grant himself. There were a number of attempts, as you'll recall, by me to deal with this last year and I was told to wait until Mr Caplan had had sufficient time to put in his response. We received that seven weeks after the event and it was put in too late, through the mouth of Ms Hartley, for me even to deal with it with her, and at that stage, as you'll recall, on 11 January, I put down the marker that I would therefore need to deal with it with Mr Dacre. Mr Jay deliberately left various matters, he said, for others to deal with, and, sir, as you are well aware and as the core participants were told on the weekend, that was after I had sent an email to Mr Jay notifying him in advance of the lines of questions that I was going to put and those were passed on to the core participant counsel, as I've been assured. Those matters were therefore left for me to deal with. Yesterday Mr Dacre chose to go further than simply say that Mr Grant was lying. He said it was "a deliberate attempt to wound" his company and "hijacking of the Inquiry" for his purposes. Again, we say, illustrative of the behaviour of the press as a whole and not simply a matter that is personal to Mr Grant and Mr Dacre. It is for those reasons that I would sit that we do need this extra time. I'm more than happy to focus it on the issues, sir, that you've just mentioned, but that can only be dealt with orally as, sir, as you appreciate.
LORD JUSTICE LEVESON
Right.
MR CAPLAN
I should say, sorry, that the email did not disclose lines of questioning. There were four bullet points just describing four topics.
LORD JUSTICE LEVESON
Right.
MR JAY
I passed on precisely what had come to me from Mr Sherborne.
LORD JUSTICE LEVESON
Yes, right. I remain of the view I reached before he. We will find some short period of time for this to be the subject of further evidence and we shall do that this week. And there it is.
MR CAPLAN
Sir, I obviously will have to make enquiries of
LORD JUSTICE LEVESON
Yes.
MR CAPLAN
I have no idea of Mr Dacre's whereabouts.
LORD JUSTICE LEVESON
Mr Caplan, I'm very sorry. I know that Mr Dacre is busy. We have worked very hard to fit ourselves around his commitments. I cannot believe that in the next three days it is not possible to find a few minutes. We shall fit ourselves around him to such extent as we can but I beg you not to ask me to go further.
MR CAPLAN
Can I just ask, please, just for assistance, how long it's envisaged on Thursday that you will be allowing for this?
LORD JUSTICE LEVESON
Well, Mr Sherborne, you said you wanted 30 minutes yesterday.
MR SHERBORNE
Sir, yes. Given that I will be focusing on that particular issue you've raised we all know what that issue involves. I'm not sure Mr Caplan is really asking me to send the actual questions I want to ask Mr Dacre.
LORD JUSTICE LEVESON
No. I think we understand what the issues are.
MR SHERBORNE
I'm more than happy with 30 minutes, sir.
LORD JUSTICE LEVESON
I think you're more than happy with rather less than that, because you've dealt with some of it. You can ask some further questions. I think that we'll deal with it in rather less than 30 minutes. I'm not going to put a number of minutes down, but I'm saying it is going to be a short period of time.
MR SHERBORNE
Sir, I understand.
LORD JUSTICE LEVESON
Right. Thank you. Right.
MR BARR
Sir, our first witness this morning is Mr Zink. MR RONALD ZINK (affirmed) Questions by MR BARR
MR BARR
If you could take a seat.
LORD JUSTICE LEVESON
Just before you start, I have determined to admit the evidence offered by the National Union of Journalists. A full ruling will be available to all core participants and others immediately. Thank you.
MR BARR
Mr Zink, you are here today to give evidence about Bing and you're employed by Microsoft Corporation; is that right?
A. Yes, that's correct.
Q. Although you are not the person who made the witness statement which has been provided to the Inquiry by Microsoft Limited, or indeed Microsoft Corporation, are you able to confirm that the contents of those documents are true and correct to the best of your knowledge and belief?
A. Yes, I am, sir.
LORD JUSTICE LEVESON
Could you tell me your position in this organisation?
A. Yes. I'm the chief operating officer for EU affairs. I'm based in Paris, where Europe, Middle East and Africa headquarters is for Microsoft and I'm also an associate general counsel. That means I work on policy and regulatory issues across Europe, Middle East and Africa.
LORD JUSTICE LEVESON
So you've come from Paris for these purposes? Thank you very much indeed. I'm very grateful.
A. Thanks.
LORD JUSTICE LEVESON
I'm usually much less aggressive.
MR BARR
You've told us what you're presently doing. Could you give us a very quick summary of your professional background before your present post?
A. Sure. I've been at Microsoft 16 years, so I've had a number of different positions within the company, and also before that I was a lawyer at a law firm in Seattle, focusing on intellectual property issues.
Q. Thank you. Moving now just to very briefly get clear in our minds the corporate structure that we're dealing with, am I right to understand that Microsoft's corporate presence in the United Kingdom is in the form of Microsoft Limited, which is essentially a sales and marketing organisation?
A. Yes, that's correct.
Q. But that the ultimate holding company is Microsoft Corporation, a United States company incorporated in Washington?
A. Yes.
Q. If I could now ask you a little bit about the Bing search engine. Is it right that, as we heard from Google last week, the way in which the search engine operates is by crawling the Internet to compile an index, which can then be readily accessed using a computer algorithm to respond to search requests?
A. Yeah, that sounds accurate.
Q. What Bing then does, when a search is executed, is to display the results with snippets of information from the websites which are thrown up by the search?
A. Yes.
Q. So does it follow that Bing is not a publisher of information on the Internet; it is merely a mechanism for finding information which is already out there on the Internet?
A. Yes, that's accurate.
Q. Would it also be fair to say that, given the amount of material which is now available on the World Wide Web, that what it does is effectively help the user to find a needle a hey stack?
A. I think you could say that.
Q. Bing News. Again, is it right that that is a service which works through a search engine and is not an independent news organisation?
A. Yeah, that's accurate. Bing News is, if you will, a subset of the index because the way Microsoft does it at least, we choose different sources for that news. It's not the entirety of what we can find across the world; it's various sources that we've chosen, and then you do the indexing based on those sources alone.
Q. It's right, isn't it, that there's no journalistic input at all by Microsoft; is that correct?
A. Yeah, that is correct.
Q. And there's no editorial function either, other than setting the parameters of the search?
A. Right. There's no editorial function other than again, it's a subset of sources, so that's not necessarily editorial but does limit what you'll find in Bing News, based on those sources that have been specified in advance. After that, it's all the machine that's creating the index for that set of results.
Q. Your servers, as I understand it, for Bing are predominantly in the United States?
A. Right. We have servers around the world. The Bing servers that do the bulk of gathering the information from the Internet and creating an index are based in the US, although we do have a server in Dublin that will cache some of that information, so if you are doing a search from, for example, the United Kingdom, it may go to Dublin to get the result from the work that's been done in the United States.
Q. And the way it operates is you have a service tailored for a country or a region. In this country, you would encourage somebody to use Bing.co.uk to get a search result that was tailored for a British user; is that right?
A. Yes, we'd tailor it to what we think British citizens would want to see when they do a search. So it's tailored to that group.
Q. But a user here could equal little access Bing.com, which is the American results?
A. Yes.
Q. I'd like to move now to the topic of the removal of problematic content. I understand that Microsoft deals with all sorts of problematic content. The sort of content that I would like to focus on for these questions is defamatory material or material which amounts to an unjustified invasion of a person's privacy.
A. Understood.
Q. You point out in your witness statement that you are, as a search engine, probably not the best target for remedial action, and you tell us about three courses of action which you would recommend in preference to seeking assistance from a search engine. First of all, you say the best target for a remedy is the webmaster, to try and get the material taken off the Internet altogether; is that right?
A. Yes. If you can remove the creator of the content, then that eliminates the problem across the entire web. So that, I think, is a first course of action.
Q. There might, though, be difficulties with that in practice though, mightn't there? First of all, identifying the publisher of the information, that can be difficult, can't it?
A. Yes, I think it can, and that's why, if you look at the way the Internet law has developed over the years, it contemplated other avenues to try and remove things beyond just going to the person who was the original author or the original person putting it up onto the website.
Q. Because it goes further than that. Even if you can identify the person concerned, he or she may well be in another jurisdiction altogether?
A. Yeah, that's correct.
Q. The second route you identify for us is the hosting service provider. Could you perhaps help us a little bit to distinguish a hosting service provider from an Internet service provider so that we clearly understand the difference?
A. Sure. The hosting service provider is the entity or person who is actually putting the content on the website for everyone to see worldwide. The Internet service provider, we sometimes talk about in terms of "last mile" but that's how you connect to the Internet. Your ISP connects you to the Internet so you can see different things there. So the web hoster will be kind of a worldwide element. The ISP, Internet service provider, will be directed towards a particular group of people or individuals, maybe in a country, for example.
Q. Focusing on the hosting service provider then for a moment, might there be problems for the individual victim in locating and identifying the hosting service provider?
A. There should be mechanisms to find the hosting service provider based on where the content is originating, so I think typically you should be able to find where that material is located.
Q. So easier than identifying the individual who's posted the material, in many cases?
A. It depends on the case, but it can be.
LORD JUSTICE LEVESON
That also could be anywhere in the world?
A. Yes.
MR BARR
So that may prove to be an insuperable problem to that avenue. The third avenue of redress you identify for us is to go to the Internet service provider. Now, the ISP is the part of the system which connects the user to the specific website; is that right?
A. The ISPs, we think of them as connecting the user to the Internet from a global level, and then it's up to that particular user as to where they want to go and what they want to view on the Internet.
Q. What limitations might there be on the ISP's ability to deliver a remedy to the victim?
A. There's a whole set of laws that were developed under the E-Commerce Directive that came out in 2000 and was formed into a regulation in the UK in 2002, that relate to how you think about the Internet and liability around the Internet and who has what obligations, and that gets you into a notice and takedown system where you can notify the ISP if there's something on the Internet that you'd prefer to have taken town, and based on those sets of rules and obligations, they'll go ahead and act accordingly.
Q. So what is it, from a technical point of view, they are able to do if they have decided to to something about some offending content? They can prevent it being accessed, can they?
A. Right, for an ISP in particular, if they were to prevent access to that content, it would apply across all the consumers and businesses that use that ISP to connect to the Internet.
Q. But if one ISP does something about the material, you could access it through another ISP; is that correct?
A. I think that's fair to say, yeah.
Q. So if you are trying to seek a remedy against material which is still actually on the Internet, you would have to seek redress from every ISP through which the offending material might be viewed?
A. Yeah, which gets you back to things like the web host or creator of the content. That's a more elegant solution, a more comprehensive solution.
LORD JUSTICE LEVESON
It's absolutely elegant if it works, in the sense that you find out who he is, where he it is and he's amenable to the jurisdiction.
A. Yes, sir, I think that's correct.
LORD JUSTICE LEVESON
But your last example rather strikes me like a sledgehammer to crack a nut and there's lots of collateral damage with that as well, isn't there? In other words you're going to impact on perfectly legitimate material.
A. With the example the ISP? I think that would be narrowly tailored to precisely that content, so I don't think that would impact beyond the precise thing you're really trying to take down.
LORD JUSTICE LEVESON
But would you not have to have a precise url so that if somebody had put the same material up with different urls or it's accessible in different ways, you'd have to identify each one, each variable?
A. Yes, that's generally correct.
LORD JUSTICE LEVESON
Yes.
MR BARR
So having explored the alternatives and the pros and cons of each of them in at least summary terms, can we move to what Bing might be able to do by way of removal of material from its index. I'd like to do this by looking at defamation and privacy separately, because they are dealt with separately in your policies. It might be useful to look at the policies at tab 6 of the bundle. Before we go to the defamation section, can I touch first on part of the very first paragraph, which is under the heading "How Bing delivers search results". I'm looking now at the last five lines of that section, which says: "We might remove particular resources from the index of available information. In each case, where we are required to do so by law, we try to limit our removal of search results to a narrow set of circumstances so as to comply with applicable law but not to overly restrict access of Bing users to relevant information." So can I take it that Bing's approach in principle to removals is to remove the minimum necessary in order to comply with the law?
A. Generally, I would say yes, but it does depend on the if you look at this tab, there are three different scenarios. There's child sexual abuse content, there's intellectual property and then there's defamation and invasion of privacy, and for some of those the standards are a little bit different. For example, in child sexual abuse content, there's been a worldwide view, through the Internet Watch Foundation, which is based in the UK, that this is such egregious material and there's agreement kind of on a worldwide basis that that should be taken down, that we have a higher methodology for removing that content from the Internet. So that isn't the minimum; that actually is a very robust mechanism for bringing things down. If you go to defamation, invasion of privacy, we do insist on a specific url for that content in order to remove it.
LORD JUSTICE LEVESON
By "remove it", you don't actually mean remove it. All you mean is take it out of your index?
A. Yeah, that's precisely correct, sir. We actually to be real technical, we block that particular url from showing up in the jurisdiction in which we're talking about. In this case, it would be the UK.
LORD JUSTICE LEVESON
Yes, but you can't take it out of the Internet because it's there, and the same problems that you've identified earlier on would hit you as well.
A. That's exactly right.
LORD JUSTICE LEVESON
Yes.
MR BARR
So let's look in a little bit more detail about the libel and defamation approach taken by Bing. It's at the bottom of the first page of the policy. It says it recognises that there are different laws in different countries and it says: "We do not remove resources containing allegedly defamatory content from our index without a court order indicating that a particular link has been found to be defamatory. When we do receive a valid court order, we remove those links from our index permanently." You're an American corporation in an American jurisdiction, so my first question is: does the system permit for a victim in the United Kingdom to obtain a British court order or to be very correct, an order of the court of England and Wales, if we're someone here in London and then to send that to Microsoft in Washington, USA? Is that enough or does it have to go through the American court system as well?
A. No, that would be enough. I mean, just from a mechanism standpoint, there's a couple of ways you can do that, or more. We're not prescriptive on how we get such a notice, but one way is there's a feedback section. If you go to Microsoft.co.uk, on the lower right you can click that and send a notice to Microsoft saying you'd like something taken down. You can also just contact either Microsoft Limited here in the UK or Microsoft Corporation in America with your issue and we'll take a look at that. So we're not prescriptive on how we would receive that information.
Q. What I'd just like to explore there is: should we understand that answer as meaning you're still requiring a court order, or are you saying that Microsoft would consider a complaint by a private individual that something was defamatory and make its own judgment as to whether or not it was?
A. Yes, we would. This is a global statement, and maybe in some ways you might look at it as setting a minimum bar for how we were going to conduct such activities. If you think about the UK and how our practice is today, we have, in the past, looked at less than a court order on taking things down from a defamation standpoint. I was talking to a colleague about this in preparing for this testimony, and I was asking her about what sort of priority does this take, and I was relieved to hear it is a business priority. But beyond that, she said she drops everything and just deals with these when they come in.
Q. Is there material available to the user in this country which would make that avenue clear to them? Because it's not clear, certainly, from the policy that we have here that that is an option available to an individual.
A. I'm not aware of material available in the UK that could soften the stance we have in this document.
LORD JUSTICE LEVESON
The stance identified at the bottom of this page: "We do not remove resources containing allegedly defamatory content from our index without a court order indicating that a particular link has been found to be defamatory. When we do receive a valid court order, we remove those links to our index permanently." But do I gather that you're prepared to look even if you don't have a an order?
A. Yes, we are. In fact, in the memorandum we attached, we actually if you refer to that, we do go further than that statement to say that we'll look at things on a case-by-case basis.
LORD JUSTICE LEVESON
But it's quite difficult to judge, because somebody may say, "This is defamatory", and then the person who wrote it may say, "No, it's not, it's entirely true", and you can't really set yourself up as the judge. Or maybe you do?
A. That's absolutely right, sir; we do not want to be the judge. What happens is of course you look at it on a case-by-case basis. Is it particular to what they're trying to accomplish? Is there a court order? If there is, you know, we would abide by that. If there isn't, we'll take a look and try and see what makes the most sense. Of course, I'm not a UK lawyer, I'm an American lawyer, but this would be for our team here based in London to take a look at this and give us what they think the appropriate remedy should be, and then that instruction would go to Microsoft Corporation based in Seattle for the technical aspects if we wanted to block that material.
LORD JUSTICE LEVESON
So if there was a direction from some sort of regulatory body, even a self-regulatory body, to the effect that this was defamatory or in breach of privacy we'll deal with privacy in a moment then Microsoft would be prepared to look at that?
A. Yeah, we would be willing to consider that.
LORD JUSTICE LEVESON
All right.
MR BARR
I think that does take us to privacy. If we follow your policy, we're now on page 2 of tab 6. The policy acknowledges that there might be sometimes occasions where material is posted which invades privacy. It gives examples. The examples are: inadvertent posting of public record, private phone numbers, identification numbers and the like, or intentional posting of email passwords, log-in credentials, credit card numbers or other data that is intended to be used for fraud or hacking. Then it goes on to say what is done or not done, as in fact the case is. It says: "Bing doesn't control the sites that publish this information or what they publish. Most of the time the website is in the best position to address any privacy concerns about the information it publishes. As long as a website continues to make the information available on the web, the information will be available to others. Once the website has removed the information and we have crawled the site again, it will no longer appear in our results. If the information has already been removed from that website but is still showing up in Bing's search results, you can request that we remove the information by using our content removal request form." So on the wording of that policy, it appears that Bing isn't offering to do anything about removing a link from or a result from a search if it invades privacy. The victim is left to go direct to the publisher and the only circumstance in which Bing intervenes is if the material has been removed from the website but remains in your index. You will, in those circumstances, remove it from the index; is that right?
A. From a question standpoint and from a reading of this, I think that's probably accurate, but if you look at page 3 of the memorandum that we submitted, we actually don't differentiate defamatory material from privacy-invading material. I can tell you our practice in the UK would be the same for invasions of privacy as it would be for defamation. We would take a look at those on a case-by-case basis.
Q. Are you saying that if someone has a court order with a decision of the court saying that a publication has unlawfully violated someone's privacy, that you would accept that as sufficient to cause that material to be removed from your search results?
A. I think largely that would be the case. Certainly if Microsoft is a party to that court order, we would absolutely remove it. If Microsoft wasn't or is not a party to that court order, we would look at it and make sure the specificity is there and the information we need is there, but we would endeavour to remove it as well, based on that court order.
Q. Are we talking about removal just from Bing.co.uk searches?
A. Yes.
Q. But still be available on a Bing.com search?
A. That's correct.
Q. It would appear then that effectively the victim of an invasion of privacy has in fact very little redress, doesn't he, from an invasion of privacy which has gone viral on the Internet. If we could perhaps think through what happens if someone is the subject of an unlawful breach of privacy which then goes viral on the Internet. If it ends up being posted on several different web pages by different people in different jurisdictions, finding the individual publishers may become effectively impossible, mightn't it?
A. I think it's conflicted, and that does get back to the ecosystem and how you think about the various avenues by which you might try to remove this material. It would probably be the case that you would look at a number of different avenues, not just one and not just search engines and not just Microsoft's but
Q. You'd probably try them all. We've had evidence from one witness who was in just that position and has made very extensive international efforts to have material removed or made inaccessible, but it can still be found. Is the position this: that in the current state of affairs, someone who is the subject of an unlawful invasion of privacy which goes viral has, in practical terms, very little prospect of having it completely removed from the Internet?
A. That's probably a little beyond my knowledge of UK law and how I think about the my background, if you will. I think it's complicated.
Q. If we stick to just from Bing, you're telling us what you'd require really is a court order or some very strong alternative evidence to get it removed simply from Bing.co.uk but it would remain available to Bing.com.
A. That's correct. We'd look at it from a case-by-case basis, so the standard I'm not sure I quite agree how strong it has to be. It has to be credible and particular. It doesn't have to be a court order, just to be completely clear, but it would come off of the Bing.co.uk. It would still be available to Bing.com.
Q. In the light of the evidence you've given us, which goes further than your written policies, do you think there might be a case for Microsoft making clearer to UK users that there are avenues of redress which require less than a formal court order?
A. Yeah, I think we could take a closer look at our global statement that we're looking at and see if there might be some modifications for UK users.
Q. The final area I want to ask you about I appreciate it's not about Bing, it's about another Microsoft product, and I readily accept that you may not be able to help us instantly, in which case if Microsoft can help us in writing afterwards, we would be very grateful. It's about your web browser, Internet Explorer. If offending content has been successfully removed from search engine results but somebody wants to access the material and still knows the url, you can type the url straight into the browser and it will find the web page for you, won't it?
A. Yeah. A browser really is just a mechanism to find a resource on the Internet. That's the primary function of a browser, is to find what you're looking for through a url.
Q. The first question is: is it technically possible for the browser to be set by Microsoft so that if somebody types in the offending url, the browser will not connect them to the web page?
A. There you're getting beyond my technical background.
Q. If that could be answered in writing, we would be very grateful.
A. Yeah.
Q. The second question again, it may be that it has to be followed up in writing: does Microsoft have a policy as to privacy and protecting the sort of privacy invasions that I've been talking about in the use of Internet Explorer?
A. We actually do. We've put a lot of thought into privacy-enhancing features. In fact, we just celebrated our 10-year anniversary for Trustworthy Computing, which is the group that looks at: how do we build privacy and security into our products at the beginning so they make sense as you go forward instead of looking at it after it's all done. So I'm pretty proud that Microsoft's done that. I think it was very much a leader in this area. And a more recent thing, if you think about Internet Explorer, is around how do you figure out behavioural advertising and cookies on the Internet, if you're familiar with that, but the information that's collected about you, and we recently worked with Privacy International to create a tracking protection list where, if you subscribe to Privacy International's list, it has websites they consider to be maybe not the best sites for people to go to and have their information tracked, and so you can subscribe to that list and if you go to those websites, the cookies are shot off and it won't track your information on those sites. I think that's a pretty compelling technology and it's a way to think about privacy, where if you don't collect information in the first place then you don't have to worry about what you do with it afterwards.
Q. So those are technologies for protecting your privacy when you are online. The sort of protection that I'm asking about is: once there is problematic material on the web, how do you prevent others from seeing it? Is that something that you would need to look into and get back to us in writing about it?
A. Yes. That would be my preference on that question.
MR BARR
Thank you very much.
LORD JUSTICE LEVESON
That's entirely fair enough. I understand the position that Microsoft adopts, and it's not perhaps surprising that what might not be lawful in this country could be lawful somewhere else, and you're obviously not going to take steps which would not comply with the law in another place. If there is a solution to the problem and I'm not sure there is of replication of defamatory or breach of privacy material going viral, as Mr Barr described it, with different urls, I apprehend you'll say that whereas a search engine might pick up the general words and block them, going beyond that, you'd have to go to the original webmaster each time, each one, one by one?
A. I think that's right. We have the technology when it comes to images, like sexual abuse content or images, to go further, but there's and part of that is you might be familiar with photo DNA, which we put in Bing, we put in Hotmail, we put in our Skydrive product and also licence or work with Facebook on to try and remove that type of content. So that's available and is working well. Not 100 per cent but works well. To go further though when it comes to other things gets much more technically complicated, and not something that currently we can do.
LORD JUSTICE LEVESON
I don't want to ask you in this public forum how you identify pornographic photographs, because I don't want to encourage those who might want to put that material online to think of ways of defeating what you're doing, but if those to whom you are speaking can see any way of using that approach to deal with material that is recognised by a court to be defamatory or in breach of privacy, I'd be very grateful if you'd let us know.
A. Thank you, sir. I'll take that back with me.
LORD JUSTICE LEVESON
Thank you very much, and thank you for coming from Paris to give evidence.
A. You're welcome. Thanks.
MR BARR
Sir, might I ask that we have a few minutes to prepare for the next witness, because I think material has to be brought in.
LORD JUSTICE LEVESON
Material has to be brought in?
MR BARR
I think Mr Jay has rather more bundles to deal with the next witness than I've had with Mr Zink.
LORD JUSTICE LEVESON
All right. (10.55 am) (A short break) (11.03 am)
MR JAY
Sir, the next witness is Baroness Buscombe, please.
LORD JUSTICE LEVESON
Very good. BARONESS PETA JANE BUSCOMBE (sworn) Questions by MR JAY
MR JAY
Make yourself comfortable and your full name, please, for the Inquiry.
A. Peta Jane Buscombe.
Q. Thank you very much. You have provided the Inquiry with a witness statement dated 16 September of last year, which should be in bundle A in the substantial number of files which are in front of you. You've signed this statement.
A. Mm-hm.
Q. Is this your formal evidence to the Inquiry, Baroness Buscombe?
A. It is. There is just one mistake in it, which I've only noticed in the last couple of days, if I may.
LORD JUSTICE LEVESON
Please.
A. It's where I refer to there not I think I say somewhere forgive me, I can't remember where I say somewhere that the industry had not changed its membership, in terms of the editorial membership of the Commission, during my time at the PCC and that's incorrect. There were two editors who came on to the Commission when I was chairman under the old appointment system, one regional and one local.
MR JAY
Thank you very much.
A. I think it's because my focus was on the national press at that point.
LORD JUSTICE LEVESON
Thank you.
MR JAY
Baroness Buscombe, in terms of your background, you are trained as a barrister. You worked first of all as legal adviser and counsel to various organisations. You then, in due course, became chief executive of the Advertising Association. You were made a life peer in 1998, took the Conservative whip and you had various shadow briefs, I think seven of them, between 1997 and 2007, and you became chair of the PCC in April 2009, upon the retirement of Sir Christopher Meyer. Is all that correct?
A. That's right.
Q. Can I ask you about the process of selection and interview? During the course of your interview, if you can recall it, were you asked about your commitment to self-regulation and freedom of the press?
A. Yes. I was, as I recall, and I had just come from being chief executive of the Advertising Association, where, of course, I was playing a very different role in terms of championing the industry, in terms of responsible advertising, but I'd brought with me strong experience in terms of the ASA and also as being a director of ASBoF and BASBoF, which are the funding mechanisms for the Advertising Standards Authority, and so therefore I had experience of that self-regulatory system. I'd also had experience of the self-regulatory system through my work on the communications bill back in 2003, and I'd actually worked previously, back in the 1980s, in the advertising industry, so I was and am still to some degree very supportive of the principles of self-regulation, and actually so I it was one of the things that attracted me to the role.
Q. And was it one of the things, do you think, which attracted those who were interviewing you to you?
A. Probably. Probably.
Q. Was the chair of PressBoF on the interviewing committee?
A. Yes, I think he was. Tim Bowdler.
Q. Thank you. I've asked others this. There's at least the appearance or perhaps even the reality of a preponderance of Conservative peers either in the PCC or PressBoF, and you're another Conservative peer. Why do you think that's the case?
A. I think it's not really for me to ask. I think that's one for the industry. Personally, I think it's I think for me it was irrelevant. My view is that I was somebody who had the requisite skills and experience for the job. It didn't concern me that I was a Tory peer, and I would have been furious if I'd thought there was any issue of parti pris, not least because in my previous role, working for the advertising industry, again, I was as Tory peer and for my view I was fiercely apolitical in that role, which I found very liberating, actually.
Q. Do you think they were looking for someone who would take on the press or for someone who would be more compliant?
A. They were looking for someone, I assume and I can't speak for them again, but I'm assuming and I would like to think they were looking for someone who was supportive of the system and with whom they could build trust in the system, to work together, because the whole point about self-regulation, in my view, is it's only as good as the people who sign up to it and who are involved with the system itself, and therefore if you have somebody who is chairing that part of the system, ie the "regulator", if we can call it in that way because I know there's an issue over regulator and non-regulator but if you have someone who doesn't even trust the system at the outset I think there's a problem. It doesn't mean that person doesn't want to test the system if one feels, further down the line, that there are issues.
Q. Thank you. We're going to take most of your statement as read, but it's right that we look at your views as to the strengths of the current system, which start really at paragraph 23 at page 01929. You refer to a number of matters which others have also spoken to: pre-publication work.
A. Yeah.
Q. The anti-harassment work, the desist notices, and also the very hard work done by a small team in resolving complaints. That summarises the strengths of the current system. Is that fair?
A. Yes, it does. It's also I mean, one of the issues which I've always felt quite strongly and maybe it comes from my background, having qualified as a barrister and worked in different ways with law. It's fast, comparatively, it's flexible and at the forefront of my mind has always been how to minimise the harm and the hurt, because the reality is I think there are very few people who leave a court of law happy, even if they've won the case. For me, this system works to in every in many ways to minimise the harm and the hurt. It's free to the applicant so that access to justice is really respected. The way that the complaints team dealt and I'm sure still deal with those who come to them is amazing, and I think if you were to look at any of the files, as I'm sure you have, in relation to how each of the complaints officers communicate with the complainant, you can see from the conversation the relationship, that there is a remarkable degree of support for that complainant, often who may not have the confidence to go to law, and I think that's something that we if we lost this system, we would lose at our peril, one of the reasons being every case it is bespoke. It's given, as it comes through on the system, to an individual complaints officer. It remains with that complaints officer. So if you have a guy in prison who's read something in the press that's really upset him, for him to have the courage, or her to have the courage, to actually make a complaint is fairly massive, but they're then in touch with this individual who can work with them and build a relationship with them and build trust with them, and I think that's very attractive, and it's away from the glare of the court, the law and so on.
Q. Thank you.
A. But the only other thing I would like perhaps you're going to ask me a bit more about pre-publication work?
Q. We've heard a lot about that from three other witnesses, Lady Buscombe. May I can you just to look at the section which deals with weaknesses in the current system. First of all, 01931, the issue of lack of independence, where you say: "It's hard to argue that we're entirely independent from those whom we oversee." Was that an issue which concerned you at the time when you were chairman of the PCC, namely between April 2009 and October of last year?
A. My view changed, to some degree, in that I realised fairly soon after I arrived that of course I was in a very different world in terms of the self-regulatory system as it applies within the press and magazine industry than as it applies with the ASA in shall we call it a more commercial environment? In the ASA environment, there was no micro-managing. The role of the equivalent to PressBoF was very much hands off, except for being a funding mechanism and being there to be supportive to the ASA system. In this system, I realised that it was terribly important that people could misconceive what independence meant and means in terms of the relationship between the Commission doing its job and the press itself, not least because of all the commentators who are continually saying that somehow, for example, Paul Dacre was running the PCC, which of course is a nonsense. The Code Committee is a separate arm, as we know, from the regulator itself, if we can call the PCC a regulator for the moment. It was terribly important for us to demonstrate seek to continually demonstrate to the world that actually this Commission, this 17 good people and true, as it were, were an entirely separate part of the industry. But I also to be honest, I found in practice it was difficult to be independent when I realised that in order to improve our credibility, to continue what Christopher Meyer I know has called an evolution I wanted a bit more of a permanent revolution, actually, to really improve the governance and structures of the organisation and to try and put pressure, if I could, with the permission and blessing of the Commission, on the industry to accept that that we needed to up our game in terms of our remit, our sanctions and very much our funding. This is where my view of independence changed.
Q. So is the gist of your evidence this, Lady Buscombe: that you were keen for more dramatic change, revolutionary change, but you were facing resistance from the industry against such change?
A. Yes, and that was not at the outset. That was really it's I spent the first two or three months learning, listening, doing a lot of travelling around the country, getting to know the industry, and realising, by the way, that in large part we're talking about an industry which is made up of amazing people doing a brilliant job on a day-to-day basis. My issue was with the those who were in charge of giving us permission, as it were, where we sought it, to try and improve our funding, improve our resource overall so we could do a better job.
Q. Yes, thank you. You point to lack of resources.
A. Yes.
Q. You also point to inadequate political support. This is paragraph 42.
A. Yes.
Q. You're suggesting there that politicians blame the PCC as a proxy for blaming the press. Is that the purport of paragraph 42?
A. Yes. If I may be so bold, sir, one of the issues with this is that it's always been so much easier to attack the PCC than actually have the courage to take on those who've actually got the power to make a difference, which is the industry, and politicians are in that quarter. We had opportunities for example, I felt, and so did my director feel, it was terrible important to have strong engagement with politicians. We were always talking to politicians, inviting them in, going to see them, in order to explain to them the system. We actually had a meeting one day set up with the Media Select Committee to come in and see us and look at our work and understand what we did. Unfortunately, even though there was a lot of notice and they all accepted, only two turned up. We would brief politicians regularly as to the how the system worked, what we did, all the frankly good things that the staff did and do in terms of training journalists, in terms of thinking about the future of regulation and how we deal with it in this if I can call it Internet age, et cetera. But it's that marvellous phrase, isn't it? It's not what you say; it's what people want to hear.
Q. Are you saying that the lack of or the withdrawal of political support for the PCC, which we all know about and saw in July of last year, was unjustified or unfair? Because, after all, it was closely allied to your handling of the phone-hacking scandal, in particular the November 2009 report, wasn't it?
A. I think, to be honest, we felt very much that we had been used as a scapegoat.
Q. Can I ask you to consider that in the context of the phone-hacking report
LORD JUSTICE LEVESON
Before you go to the phone-hacking report, I just wonder whether we can pursue one aspect of this just a little further. You said, rather intriguingly, Lady Buscombe, just earlier I'm just going to quote you. You said, about the question of self-regulation: "I was and am still, to some degree, very supportive of the principles of self-regulation." So you've certainly qualified that original enthusiasm and I'd be very grateful for you to give me your perspective about the degree of qualification and where it should lead. Now, I appreciate that you've given me a window on it in what you thereafter said about the interaction with the source of funding and the consequences of that. So I've got that, but before we go on to the detail, I'd be very interested to hear the extent to which you lost faith with it and where you think it ought to be now. I appreciate that normally we do this at the end, but before we got tied into the phone-hacking and the specific decisions, that part of your evidence, to my mind, is by far and away the most important.
A. For me it's the most important too, sir, because the reality is I want to support the self-regulatory system because I believe there is a real problem with the alternative, in terms of ie state regulation, but this demands a degree of trust, and the issue for me became a problem of trust. I remember towards the end of my time there, one of the editors asked me: "Peta, don't you trust us?" and I said, with an incredibly heavy heart, "How can I?" And this is because we felt that we hadn't been told the truth, and when I say "we", of course, I'm thinking of myself and the Commission. I did not work in isolation. I had the tremendous support of the Commission and particularly the lay commissioners and of course, that's another issue too, because I'm slightly jumping here, but there came a time when I had to question the editors on the Commission in my head, which was very, very difficult, because these are people that I have worked with, debated with, discussed with and so on at great length over the two and a half years that I was there. But there was something that was continually disturbing me, and that is that you have this slightly obscure body in some ways, PressBoF, who are supposed to be the sort of funding mechanism in charge of remit, sanctions. Basically the guys who make the rules are the industry and yet of course it was the industry that was attacking the PCC in the media, both broadcast and non-broadcast media but there's an over-arching body which I couldn't seem to get to, which was the Newspaper Publishers Association, which is the NPA, and the Newspaper Society, who have been silent in all of this, and I'm slightly amazed that they're not being called, if I may, sir, with great respect, to give evidence, because it's really important to question oneself. You know, where does the power lie in all this, to make this and underpin this system? To make it credible, to ensure or to ensure its credibility? Because I felt all along that, you know, it's the right system in terms of a democratic society to have a free press that is not in any way shackled by the state, but when you have an over-arching body that is not there to support I remember the at one point, the outgoing chairman of the NPA, which is the over-arching body, who was then managing director of the Guardian Media Group, came in to see me and I say this with some care because it was a private meeting, but I think it speaks volumes who was asking me why doesn't the PCC do more in terms of its remit, sanctions, rules, et cetera, when we didn't have that locus, and I remember saying to him: "But you have been the chairman of the over-arching body. You could make a difference. And also you have been managing director of Guardian Media Group, who have been attacking us. Why did you do nothing?"
LORD JUSTICE LEVESON
We may not have had the Association, but I think we've had the editors, and we'll have to see how much further we should go. Thank you.
A. I think I should say also that this year sorry, towards the end of last year no, hang on, the middle of last year it's very difficult to think about timing. I, last Easter, was in touch with the guy who runs the NPA, Newspaper Society, David Newell, and I was pleading with him, on a telephone conversation so you don't have it in your bundles saying, "This is really important. This is too important to get wrong. We need to find a way to show that this system can work, can be trusted." And he said he would talk to the now chairman I assume he's now chairman but again I don't think that happened. And I talked to that chairman also more recently, when I was still in the job, and again nothing happened, and this is one of the reasons why I felt it was so important to send a letter in April of last year to the publishers and proprietors to spell out my concern that there was a real issue of trust in the system now and that it was terribly important that we actually look and share with the proprietors and publishers the whole issue of governance within news organisations, but also look at what we can do to actually introduce much stronger protocols and develop a different kind of relationship with the industry itself. And I still think that's doable, but it's a tough call.
MR JAY
I'm going to come back to those issues in due course, Lady Buscombe. On phone hacking, though, if you look at file B4, tab 67, please. You'll find the report on phone message tapping allegations dated 9 November, 2009. It's our page 41333. Let's just be clear about the conclusions, which start at 41341.
A. Not sure I'm in the right place here, actually. I'm looking at the PCC report on phone message tapping allegations.
Q. You're in the right place.
A. Yes?
Q. The conclusion if you look at the numbers on the bottom right, you'll see 41341.
A. Yes, sorry, I have it now.
Q. 13. Mr Toulmin made it clear that those were the conclusions of the Commission rather than his conclusions. Is that correct?
A. Yes. I mean, Mr Toulmin was the he drafted the report and we had I think we met on two or three occasions to debate and discuss this, think hard about what we were writing and or what he had written and agree with whether we were comfortable with this report going out.
Q. It's clear from the documents we've seen that the first draft stopped at the end of paragraph 12. There was then a discussion about the conclusions. There was a second draft, which included some draft wording, which we see substantially in the same form as we're looking at now, and that draft wording was approved by the Commission. Does that accord with your recollection?
A. Yes. If it was the wording that went out in the end, it did it was approved by the Commission.
Q. So you were presumably comfortable with paragraph 13.2, and in particular 13.3, the line: "Indeed, having reviewed the matter, the Commission could not help but conclude that the Guardian's stories did not quite live up to the dramatic billing they were initially given." You put your name to that, didn't you?
A. I put my name to it. I have to say, though, I was never comfortable with it. The reason being was that again, we didn't have the locus, we didn't have the powers, the structure, the processes in order to seriously consider this whole issue. But I mean, I have to say
Q. But if you weren't comfortable with it, why was it included?
A. No, I'm not saying I wasn't comfortable I meant the whole report, in the sense that you know, one again has to think about this in context. This is a report which, of course, you know, with hindsight and so on, I regret. But I think you know, I regret this in the same way that I regret that I was clearly misled by News International, that I accepted what they had told me. I felt all through the process somewhat hands tied by merely being able to ask questions, write letters to editors and so on. Indeed, one or two editors didn't even bother to reply. This is when I
Q. I'm on this report at the moment.
A. Okay, but I think it's important to understand that, yes, I mean, I, with the Commission this was the Commission as a whole accepted this wording.
Q. And at the time when you were having frank discussions about the conclusions in particular, did you express any disquiet about these conclusions?
A. I can't remember. To be honest, I can't remember what I said at the meeting.
Q. Did you have any
A. I've tried to remember. I have tried to remember.
Q. Did you discuss any disquiet about the fact that the Commission might be going too far, namely carrying out an investigation or inquiry, when it didn't have the ability to do that?
A. That's really where I was uncomfortable because what could we do? If we'd done nothing, which is perhaps I mean and I know some have said we should have just said, "Sorry, we can't do anything." I've tried to imagine the reaction if we'd said that and we're calling ourselves the PCC and we're trying to be credible. I thought unless we can probably investigate, perhaps we shouldn't have done anything, but on the other hand, if we'd done nothing, we would have been accused of being useless for doing nothing. It's very, very difficult.
LORD JUSTICE LEVESON
Well, you might have said, "This is really only a complaints mechanism. This is nothing about regulation."
A. But at the time we felt that we did have a regulatory role, in a sense, to perform. There was nothing else. There were no other layers that were, at the time, coming into play, and that's why I was determined then to when we were going through this whole issue in the summer, I realised that we needed to really rethink this system and that's why I started where I knew I could begin, which was with a really as strong as possible independent review of our governance and structures. I felt if we started from within and actually opened up and gave this organisation itself more confidence, then we could go forward this was a stepping stone to a much more, shall I say, hopeful hopefully a much stronger debate with the industry about the future of the system.
MR JAY
But at the time and we know what you were thinking at the time because you gave a speech to the annual conference of the Society of Editors, which is at tab 69 of the same bundle.
A. Yes.
Q. In the speech you gave, only a few days after the publication of the report we've just been looking at because you gave it on 15 November 2009 it might be said that you were expressing views which were ones of satisfaction with the status quo. Would you accept that?
A. No. Because look at the final paragraph.
Q. Let's look at what you did say. Under tab 69 at page 41347, "Self-regulation of the press", you rightly point out that self-regulation demands a degree of trust and integrity from all those who buy into it: "It works on the basis of good old-fashioned common sense." Were you intending to suggest there that there was a lack of trust and integrity from those who bought into it?
A. What I was really wanting to express, and I it remains my belief, is that it's as very fragile system, and I think I've already alluded
Q. Sorry, Lady Buscombe, just indulge me. Is it "yes" or "no", and then qualify it as you feel
A. Sorry, if you could repeat
Q. Were you intending to suggest that there was a lack of trust and integrity from all those who bought into it? You don't say that, do you?
A. I don't say that because one of the reasons I don't say that is because I'm talking to the industry which, in large part, seriously supports the system, and I think this is really important. When you're talking to the Society of Editors and so on, you're actually talking to a body of people from all over the United Kingdom. Actually, it's mostly regional and local editors and so on
Q. We understand all of that. Can we just move on
A. No, but it's important, if I may if I may, Mr Jay, it's actually quite important because, your know, a large pat of this industry actually I think is you know, is it's a shame that we are where we are, because they do support the system and they do I trust them to be
Q. The point I'm making is that you were supporting the same system, and if people use words like "good old-fashioned common sense", there's nothing wrong with that
A. No.
Q. but it does suggest a measure of support because one often hears people invoking common sense as justification for their position.
A. Yeah.
Q. That's what you were doing here, weren't you?
A. Yeah, yeah.
Q. Then, on the next page, 41348, three lines down, you point out a general proposition: "We live in an overregulated world."
A. Yes.
Q. A bit later on, fourth paragraph: "Such overregulation is in danger of deterring the best people."
A. Yes.
Q. And then, even later on, level with the lower hole punch: "We have our critics, some with their own agenda and some who genuinely don't understand what we do. I have yet to hear of a constructive alternative that might preserve press freedom and keep standards high."
A. Yes.
Q. All of this is strongly supportive of the status quo, isn't it?
A. Yes.
Q. Then on the next page, 41349, eight lines down: "The press do not regulate themselves. The PCC is funded by the newspaper and magazine industry but operates independently of them. Its independence is guaranteed by a majority of lay members." So again, there's no suggestion there, is there, of any concern with lack of independence in the PCC or its relationship with the funders, PressBoF. That's right, isn't it?
A. In terms of this speech, no, but that's with this really important maybe I was being too subtle proviso which I put at the end.
Q. Yes. Are we looking at the last paragraph?
A. Where I say: "In return, I will expect the industry to give the PCC the freedom to develop rapidly
Q. Yes, but read on.
A. if necessary, to exploit the opportunities presented by media convergence. We've shown that we can be trusted with the freedom we have enjoyed from the state and from the industry over the last two decades. Now is our chance to show how our model can be trusted in future." And that, to me again, perhaps I was being too subtle
Q. Well, maybe you were.
A. But you have to remember that also you know, I'm talking to the press. I'm talking to people who will mischief-make. Particularly as chairman of the PCC you know, there are always going to be mischief-makers and they're going to read one thing or another depending on
Q. There are two possibilities here. The first is that this was a clear message of support for the status quo. The second possibility is that you were giving a very subtle, sophisticated, coded message to your audience that unless they buck their ideas up and agree to radical change, the writing was on the wall. Are you suggesting that you were giving the second message rather than the first?
A. To a degree, yes, I was. Because the thing is I had I'd been talking about the writing on the wall probably from very early on in private meetings, as it were, with PressBoF because for lots of reasons and very constructive reasons. I mean, for example, take pre-publication. I thought it was absolutely brilliant but I knew nothing about it until I joined the PCC and I felt the industry was underselling itself in terms of what the PCC did and does in terms of stopping and preventing the hurt and the harm, and I thought it was important that the PCC really up its game in terms of awareness, encouraging the public to come to the PCC through a new advertising campaign that we set up and so on. This was a call to the press to say: this is a great system but if we stand still, we're going backwards.
Q. You weren't suggesting here, were you, that there needed to be a fundamental reshaping of the constitution of the PCC; is that right?
A. By that stage, I was beginning to feel less and less comfortable with the put it this way: I wanted very much for there to be a good relationship and trust between the industry and the lay commissioners and myself, but I was becoming more and more frustrated with our inability to up our game because of lack of resource and lack of support.
Q. You weren't suggesting
A. The attitude, if I may, from the industry: "Oh, well, we've all been here before, Peta. It's perfectly all right. It will be fine, and by the way, we don't have the money so we can't "
Q. You weren't suggesting here that the PCC needed wider sanctions, such as the ability to fine editors, were you?
A. We constantly thought about that in discussions with ourselves, at the PCC, we
Q. I'm sure you did, but you weren't suggesting it here, were you?
A. No, I wasn't, no.
Q. And in answer to the independent review, which you initiated in August 2009 and reported in July 2010, there was no suggestion that the powers of sanction should be widened to include a fine, were there?
A. For what I felt and to some degree I still feel and I think, you know, as I make clear in my statement the whole issue with fines is quite fraught, one of the reasons being it has the risk of turning the system from one that is collaborative which is really important on a Saturday night at 1 in the morning when you have the managing editor of the Sun or the Mail or it doesn't matter who it is discussing with the director whether or not something should be run. That's really it's hard to explain, if I may, to lawyers. I have a hard time with lawyers I know understanding that actually it's a system where the collaborative can actually produce very good results as opposed to adversarial, and when you introduce a system of fines, there is a concern that that might break down that collaborative relationship. One always has that focus: what is the end what is the outcome? The outcome is perhaps a less a lesser service for the public. There is another issue, if I may
Q. The question was quite a simple one
A. I know, but I think
Q. I'm not asking you
A. But it's one that, for example, the politicians are always saying is the quick fix, and you know, I'm sorry, but when the BBC people are fined, who pays? It's you and me, the licence fee payer. It's not Jonathan Ross. You know, it has to hurt the right person. It's the same in the public sector.
Q. I think everybody would agree that without prejudice to the merits of bringing in financial sanctions, it would be the press, who, after all, are private or public companies, who would have to pay. It wouldn't be the taxpayer, would it?
A. No, it wouldn't, as long as the press pay for their own system, which I think they should. But what I'm saying is it's got to hurt in terms of you know, if it's a sanction, it has to hit. It has to hit the right spot.
Q. In answer to the Select Committee's February 2010 report, the Commission took the view that notwithstanding the criticisms in that report, which you're aware of, the status quo should be maintained. That's right, isn't it?
A. Sorry, who took the view?
Q. You did. We can see that from the
A. Oh, in terms of fines.
Q. Well, generally. If you go to bundle B, section 1, tab 48. It's the PCC response to the Select Committee report.
A. Yes. Let me just I have two 1B2s here. Sorry, what number is it?
Q. 48, our page 45703. It's draft by Mr Abell. No doubt you saw this before it went out?
A. Oh God, yes. Yeah, this is no, no, what we were doing here was not accepting the status quo by any means but what was important for us was not to pre-empt our independent review of our governance and structures. So we weren't meaning in any way to diminish or compromise that's the wrong word but diminish the report of the Media Select Committee. What we were trying to say: look, it's really important here, if we may, to await before we respond and decide some of these issues, to await the outcome of the independent review of our governance and structures.
Q. I think that may be referred to, but you're not saying in this reply that you don't wish to comment in the light of that review. Look at 45703, level with the lower hole punch. You do say in that paragraph: "It's important the PCC does not prejudice the outcome of the government review. We are not yet in position to respondent to all the of the Select Committee's views and recommendations." But then you went on to give responses in certain areas, didn't you?
A. Well, also to make clear and this is what was quite frustrating, actually, was that this the Media Select Committee had carried out this extensive review, but it clearly didn't still didn't appreciate that quite a lot of what they were recommending was without our locus. We couldn't make it we couldn't the PCC itself wasn't responsible for sanctions, remit, funding. That was PressBof and, of course, the NPA. And that was why we were, you know, constrained in what we could say. You know, a lot of this related to the role of the industry, not the PCC.
Q. Notwithstanding that, it's clear, for example, that views are expressed on the strength of the current system. For example, at 45706, the paragraph which begins level with the lower hole punch, you say: "At present, the Commission believes its powers are effective and can point to a culture in which its sanctions have real impact and led last year to a record number of settled complaints. However, it welcomes the fact that the issue of sanctions can be re-examined, and will be talking to the industry on this point."
A. I think yes. I think what is important here is a lot of people assume because there is no fine, then there isn't really a sanction. I have to tell you, when I was chairman of the PCC, I have to say I'd love you to have been at the end of the phone, as I was sometimes, when we had issued a critical adjudication. The end of the phone from some of the editors, and their reaction, their fury, their anger that we had issued a critical adjudication. This I found one of the hardest things to persuade, whether it's politicians or the public, that the true effect upon editors when you issue a critical adjudication is massive. You know, these are people who are writing about other people's lives all the time with alacrity, but if you
Q. I think you're giving us here another reason for supporting the status quo, which we understand
A. No, no, I'm not at all.
LORD JUSTICE LEVESON
But don't you think the anger might be that the PCC have had the nerve to criticise their judgment?
A. Oh yes, yes! That's exactly it, sir. That's exactly it, sir. We have had the audacity in fact, I remember one editor who rang me up and was fairly abusive because we'd had the audacity to name his newspaper on our website, and all we were doing was actually saying that a complaint has been resolved between X actually, it's the FT and the complainant and which we thought was rather good news, actually.
MR JAY
What's more, I think a number of editors threatened to leave the PCC
A. Yes, yes.
Q. as a result of adverse adjudications. Three newspapers. Are you prepared to name them?
A. The FT, the Guardian, the Mirror.
Q. Doesn't that suggest, though, that the dynamic between you that you have the nerve, the audacity, to publish or require the publication of an adverse adjudication against them suggests that the balance of power may be in the wrong place?
A. Well, this is I mean but this is where one has to think about the system. You know, there's no question that actually when you issue a critical adjudication you are you know, it really hurts. The point is: do they respect it? Do they accept it? Because my view is the editors the newspapers as a whole have an extraordinary privilege here at the moment, in that they have a system where getting a telling-off, in a sense, from the regulator is hoped it's hoped that that is effective. The reality is I think the rest of the world would kill for such a system.
LORD JUSTICE LEVESON
Yes, but the point is it's not that their anger is: "How can we change our system to reflect the fact that our fellow professionals have criticised us?" It's: "What are you doing criticising me?" And that actually is rather significant, isn't it?
A. It is significant. It's very significant. It's very important in all of this, because at the end of the day, whatever system is put in place, it has to build trust between it and the public, and I can say, as a member of the public now, that will matter to me very much.
LORD JUSTICE LEVESON
But isn't that the risk, that what's happened, for whatever reason and we'll carry on going through it is that actually there is now no public trust?
A. That is a problem. That is a problem. But so how does one rebuild that trust? How does one rebuild that trust? That, sir, is a tough call for you.
LORD JUSTICE LEVESON
Thank you.
A. If I may
MR JAY
Yes, but that aspect
A. But I think there are ways and if I may
Q. Can we come back to that because I'm trying to deal with the chronology and I'm pointing out, quite gently, that a year into your post, you were effectively saying to the parliamentary committee, in a public response to it, that the existing system and the existing culture is satisfactory. Isn't that what you were saying here?
A. I was saying that, but I was saying that pending and I you know, I genuinely say I was saying that pending the outcome of the governance review.
Q. Okay.
A. Which I know sounds, you know but it's true. And remember I went into this totally supportive of self-regulation and wanting it to work. You know, as chairman, it's really important that you are supporting this system, supporting your staff, and also looking to your lay commission as well. And I'm very proud of the lay commission as it is now. You know, that was all part of my
Q. I understand all of that, I'm just trying to go into what the mindset was in March 2010. If we turn back a page to 45705, you will recall that the Select Committee chose to characterise the November 2009 report as simplistic and surprising.
A. Mm.
Q. But you came back fighting. If you look at the upper hole punch, just below it: "The Commission also wish to comment on the Select Committee's remarks on phone message hacking and the PCC's work in this area. It believes that your report mischaracterises what the PCC actually sought to do, which was not to duplicate the police investigation but to seek to ensure a change in practice at the News of the World, as well as to confirm best practice within the industry as a whole." Well, that wasn't clear from the November 2009 report, was it?
A. Sorry, where are you at the moment? I'm so sorry.
Q. Just level with the upper hole punch.
A. On which page?
Q. 45705.
A. Yes. Sorry, can we do that bit again? I'm just because I missed it.
Q. Just skim-read the paragraph which begins "The Commission also wished to comment". Are you with me?
A. Yeah. (Pause). Yes: as well as to confirm best practice within the industry as a whole." And your question on that was?
Q. We've seen from the conclusions at paragraphs 13.2 and 13.3 that you chose to go further than that and express a view about the Guardian's claims, for example, didn't you?
A. But the difficulty one has to remember what the situation was then. I didn't realise I was being lied to. I was taking on trust when the police had told us. You know, there was a very, very different climate then to what we know now.
Q. That may be correct, but all I'm saying is that you did choose to put your head above the parapet and delve into areas where perhaps you shouldn't
A. Well, as I think I explained before, if I may, Mr Jay, we were dealing only with allegations from a newspaper, which we certainly didn't dismiss and we actually you know, there was we thought about this long and hard, but our difficulty was we were so constrained in terms of our locus, and as I've said to you before, you know, if only I hadn't taken at face value what people told me. But again, that's you know, one didn't want, at that stage, to mistrust what one was being told, and certainly not mistrust what one was being told by the police.
Q. Then
A. That's why, if I may say so, I'm really glad this Inquiry is going to, at another stage, look at the role of the press and the politicians, role of the press and the police. It's very important.
Q. Later on on that page, you refer to remarks you made at the same speech we were looking at earlier, the 15 November 2009 speech
A. Right.
Q. which led to defamation proceedings brought by Mr Mark Lewis over something you said, and there had to be a libel settlement. Isn't that correct?
A. Yes. I mean, that's all on the record and frankly, I did what I did in good faith. I regret it, just as I regret believing what I was told by News International.
Q. I'm dealing with this chronologically. The issue of phone hacking. The matter became even more contentious in 2010. If you could go back, please, to the B bundle, section 4, tab 75, which might be in the second file.
A. It's not in that one. Am I on 1B or am I on
Q. 4B, I think.
A. Oh, 4. So it's bundle 4.
Q. Tab 75.
LORD JUSTICE LEVESON
It's the same one that the PCC reform is in.
A. Right, so it must be somewhere here. I don't know where it's gone. Bundle 10, bundle 2, bundle 3, bundle 5 to 9, bundle 1B, bundle 1A, bundle 1B. That's very peculiar. Ah, it's on the floor. Sorry.
LORD JUSTICE LEVESON
Very good.
A. Thank you.
LORD JUSTICE LEVESON
Tab 75.
A. Okay.
MR JAY
There isn't a date on this, but it must have been after a letter that Mr Rusbridger wrote in September 2010. If you could look, please, at page 41466. This is an internal PCC document, which we think the director probably wrote.
A. Oh dear. Oh, 41466.
Q. Do you have that?
A. Nearly there. Okay, here, "Validity of the 2009 report, reopening the inquiry".
Q. That's right. The point has already been made in relation to whether this was an inquiry. You can see in the middle of that paragraph: "It is, of course, wrong and mischievous to suggest that we instigated an inquiry into the practice itself and somehow exonerated the News of the World." Well, the reasonable person applying his or her common sense, to use your test, might be forgiven for thinking that, don't you think?
A. Which bit of it are you on? I'm so sorry.
Q. Paragraph 39.
A. Oh, 39, okay.
Q. This is the mischievous bit.
A. So you're saying I'm so sorry.
Q. The reasonable person applying his or her common sense might be forgiven for thinking that it was an inquiry you were conducting, in view of the conclusions you expressed. Would you agree?
A. No, actually I wouldn't. With great respect, I actually wouldn't agree with that, because I think it was quite clear from our initial report there was only so much we could do. We were actually trying to look at whether the industry had done what it said it would do back in 2007. We were tremendously constrained in this. I mean, this is you know, this was I have to tell you, all of this was very, very difficult for us. There wasn't a day that went by at the PCC where we weren't troubled by this. So none of what we wrote and was written here, for example, was done flippantly or without great care. The reality was we were just terribly frustrated by our position. We didn't have the processes, we didn't have the I mean, how could we investigate? And indeed, should we investigate? Should we could we ask for people to attend on oath? No. You know, it's very, very difficult.
LORD JUSTICE LEVESON
Well, you could have asked people to attend, couldn't you?
A. We could ask people to attend, but then what? What could we do with it? We could be hostages to fortune. We could raise expectations that we couldn't meet. It was rather one of those: you're damned if you do and you're damned if you don't. It was very, very difficult.
MR JAY
It's recognised in paragraph 43, halfway through that paragraph: "One problem for the Commission is that the 2009 report is not a systematic investigation into possible evidence of phone message hacking but it does express a qualitative view of the merits of certain specific pieces of evidence. The criticism of the Guardian is easily recast as a defence of the News of the World." That's true, isn't it?
A. That's true, yeah.
Q. At paragraph 52, this quite frank paragraph: "It is not clear how the PCC can offer a public response at this time that would be of benefit. Our current strategy has been not to speak publicly or accept interview requests, because it is not clear what we can reasonably add to the story. There is no doubt that the breadth of the allegations is damaging to the PCC, in that it will suggest to people that a system that allows such behaviour to take place is no fit system at all." Well, that was probably Mr Abell speaking, not you, but do you
A. One of the issues about all this is it was a criminal act and no regulator I mean, Ofcom can't deal with crime, nor should it. But the commentators what we were writing here, in a sense, was post a lot of discussion, deliberation, thought among the Commission. The reality was and is, if I may that whatever we said, there was people were misconstruing our role, and also, bearing in mind context, you know, we were trying to consider something that had happened you know, we thought, back in the beginning of the century, nearly ten years earlier. Two people had gone to jail when we wrote that report in 2009. We were agonising right from the start as to what to do about this.
Q. I think what's being said here I may be wrong, but what's being said in this last sentence is that the existing system is inadequate because it's the inadequacy in that system which permitted such behaviour to take place and demonstrates that the system was unfit.
A. Yes.
Q. Isn't that the only fair reading of it?
A. Well, the difficulty is you could make a system that looks super-fit on the surface and I think this is what we were thinking you know, talking about earlier, but the reality is it's actually about culture within news organisations, newsrooms. Can you have a system that changes the culture within news organisations? And that so
Q. In any of your public pronouncements or any of the documents, which I know you've had the chance to look at in the bundle, did you ever say that the real problem lies with newsroom culture?
A. I think I maybe just alluded to it, sorry. Slightly maybe I found it very difficult to write that report in September, and I think if I was writing it now I would have been more expansive in terms of what I meant in the closing if I may return to that, the closing paragraphs of that report sorry, of that witness statement, I'm sorry, I'm referring to. You'll see where I
Q. That's your evidence to the Inquiry?
A. Yes.
Q. I understand that your evidence to the Inquiry might take a certain line and that's perfectly reasonable. What I'm referring to is any of the documents or any of your public pronouncements as chair of the PCC. Did you ever say, "The really problem here is a newsroom culture which is problematic", or whatever epithet you chose to apply
A. That was what is I was referring to when I wrote the letter in mid-April to the publishers and proprietors, which I can't remember where it is. Somewhere here.
Q. Can I tell me which year?
A. Yes, April 2011. I think it's either 11 April or 15 April 2011 when I wrote what happened was we'd set up this review of phone hacking or I set it up in January of 2011. I decided, along with my director
Q. I have the letters.
A. Good.
Q. Can we just have a look at them. Sorry to cut you short, but
A. That's all right. Where is it?
Q. It's in the same bundle as the one we've been looking at.
A. Okay.
Q. Tab 95. This is bundle B4, the second part of it.
A. Ah.
Q. You wrote first of all to the Secretary of State on 12 April and then you wrote to some proprietors.
A. That's right. I can almost remember that. Yeah, here we go. I have it here. I wrote to the Secretary of State.
Q. 12 April, page 39691.
A. Yeah.
Q. And what you were telling him here this is the right honourable Jeremy Hunt, Secretary of State for Culture, Olympics, Media and Sport. You were saying the existing system is fine and you were trying to persuade government to maintain the status quo
A. No, I
Q. and the system of self-regulation, weren't you?
A. No.
Q. You weren't?
A. No. If I may, no, I wasn't saying the system was fine.
Q. Where does it say, save in relation to phone hacking, that the system was other than fine?
A. I'm saying: "The Issue of phone hacking remains a serious concern, both to me personally and the Commission as a whole. Following the statement from News International last Friday in which it apologised for its actions and accepted its internal investigations had not been sufficiently robust, the phone-hacking review committee of the PCC issued a clear statement in which it stated that it will be holding the News of the World to account for its actions and public statements." And I go on to say I'm keen to ensure we follow due process here. I'm not saying the status quo
Q. But were you recommending changes in the existing regime in order to deal, for example, with the issue of phone hacking?
A. Not at that stage, no, because what I wanted to do was first meet with the proprietors and publishers just to see, just to see, before slightly screaming with frustration, what could be done. Because this is about the time, also I can't remember when April when Easter was last year, but this is also about the time when I was also speaking informally to the industry, to the NPA, to say: what can we do here? This is real. There is an opportunity here now for the government to introduce state regulation. It's called convergence. It's called the next communications bill
Q. What has happened here is that the Secretary of State, giving evidence to the Select Committee, called into question public confidence in the PCC
A. Yes.
Q. and possibly raised the spectre of a different regime.
A. Mm.
Q. The purpose of this letter was to seek to persuade the Secretary of State that the existing regime, a regime of self-regulation, was perfectly satisfactory. Isn't that the truth?
A. No. Not with respect, I'm not saying it's satisfactory. What I was trying to say was, in a sense: be careful what you wish for, that in a sense, I wanted this letter to go to the Secretary of State to say that I was concerned that suggestions had been made that maybe there should be a statutory PCC, which I would find very difficult to accept before having the opportunity to resolve some serious issues within the system itself in debate and discussion with the industry. But also, in a sense, this letter will have followed on or be probably close to meetings with the industry where I'll be saying to the industry as well: "Guys, you have to understand that this system is more and more becoming more and more fragile." We have and it is on record in the House of Lords
Q. Yes, but where are you saying that in for example, if you look at the letter to Mr James Murdoch on 14 April 2011, 41939, which is under your tab 98. You wrote similar letters to others.
A. Yeah.
Q. I just ask you to skim-read that. You weren't warning him that unless the industry bucked their ideas up, the writing was on the wall. What you were seeking was their commitment to the existing system of self-regulation, weren't you?
A. I was thinking carefully about what I put in writing. When I'm approaching publishers and proprietors, I'm thinking with great care about what I write. These are very powerful people, who have a view about their about where the system is. These are people who, in one instance and it's not James Murdoch in another instance, I don't think the publisher has ever forgiven me, simply because I wrote, as chairman of the PCC, to say how appalling I thought it was that one of their editors had named three victims of sexual assault and so on in a newspaper. These are people that you where you have to tread let's put it this way. You have to tread carefully to gain access.
Q. Was this a coded message
A. Yes, in a sense, it was a coded message to say
Q. or did it reflect the balance of power, which was: here were you, effectively unable to deal with very powerful individuals who you knew you couldn't really influence?
A. Not unable to deal with, but I think I was the first chairman of the PCC to formally write to all of the publishers and proprietors, actually at the suggestion and a very good suggestion, I thought of the independent reviewer review body I'd set up for phone hacking. We decided that it was really important to turn to the publishers and proprietors to discuss these issues with them, and actually to say to them: "Do you know what? The system is now in peril." And if I may, that's not something I would ever put in writing to these people.
Q. But is it your evidence that you told them that?
A. Yes!
Q. And what was their reaction then?
A. "Peta, we've been here before." For some of them. But what was interesting was some absolutely got it and absolutely understood why I was very happy for the Financial Times to write this up as a story, because it was important for the public, for people beyond the press to understand that we were doing our utmost to underpin the credibility of the system, and I very much stand by that. To me, this was really an important stepping stone in our relationship, and actually, I have to say, it was it struck me that it was particularly the PLC, if I can call them that, the PLC guys involved so for example, when I spoke to the chairman of Trinity Mirror Group, when I spoke to the chief executive of the FT, I very much felt they understood why I was doing this and they were incredibly supportive. But other parts of the industry, I learnt, were deeply unhappy that I had gone public in this way.
Q. By the time you left in October of last year and we know that you tendered your resignation, I think in July
A. Yes.
Q. no changes to the system had been introduced of any substance, had they?
A. Well, a number of changes had been introduced. I mean well, a lot of changes. I mean, when I as a result of the review of our governance and structures, we introduced 75 changes to just our internal
Q. But these are all minor cosmetic changes.
A. No, no, no.
Q. No changes of any significance were introduced. We had the same system with the same balance of power, the same lack of independence and the same inability, it might be said, to impose any proper sanctions. That's the truth, isn't it?
A. I don't think that is true. I think the governance review body the governance review itself actually made a huge amount of difference in terms of our governance and our structures. We changed really important things, like, for example, the appointments process. We became much more transparent, much more accountable, which was quite right. We actually introduced a number of new processes within the organisation. I think we gave overall, which I'm really proud of we have the organisation more confidence. Even though we were, to some degree, being a bit battered and beaten by the outside world, as an organisation we really gained in confidence.
Q. One thing
A. And also, can I just sorry, because it's so important. One thing also which I think is I think is a really important part of the matrix here, if I can call it that, and that is the Commission, the lay commission. You know, I'm really proud of the lay commissioners that we you know, we brought on board through a proper, independent, if I can call it that, a proper process of appointments, with an independent assessor. We had over 3,000 applicants back in 2010, which is amazing, and if you look at the individuals involved, I would say they're just the sort of individuals you would want to have as the if you have a new regulator and it remains a self-regulatory system. You know, chief of police, ex-High Court judge, et cetera, et cetera. You couldn't in fact, there were plenty that we had to turn away which I was sad about. Brilliant applicants.
Q. Just two other matters I'd like to deal with, if I may. The first is Mr Desmond.
A. Yes.
Q. Can I deal with it shortly in this way: you were successful in bringing Mr Desmond back into the fold on the departure of Sir Christopher Meyer when you arrived; is that right?
A. Yes. It wasn't immediate.
Q. I think if we just have "yes" or "no" and then I'll move on because we know he came back.
A. Okay.
Q. But when he left again in January of 2011, presumably you tried to bring him back in but did not succeed; is that right?
A. I didn't try the second time, for very good reason. When I did it very much not me on my own I mean, yes, I went to see him on my own and we had an interesting hour's conversation I very much went with the blessing of the Commission. But I knew then I was overstepping the mark in terms of the system, because it really wasn't my role to go and do that. That was actually the role of PressBoF. But I felt very strongly that the system wasn't credible unless there was almost universal buy-in from the major players, and the fact that somebody who had I think it's about a fifth of the titles was outside the system for me compromised the credibility of the system overall.
Q. Mm.
A. So we went sorry, I went as an individual, but with the blessings of the Commission to bring them in.
Q. To try and bring him back, didn't you?
A. No, this was the first time. The second time I didn't because I realised that if I was I had enough battles on my plate, probably, in terms of my relationship with the industry. For all, I hope, the best reasons, because I just wanted to help to underpin the system, to improve the system, but to step over the line in terms of my role again wouldn't have been helpful, wouldn't have been right.
Q. Can I ask for your view on Lord Hunt's contract proposal, about which there was evidence last week. How is everyone going to be brought into this contract, in particular Mr Desmond?
LORD JUSTICE LEVESON
Have you been involved in this at all?
A. Well, actually not in this what I did was before I left the PCC, sir, I set up the reform committee and I know they have been working very hard, the lay commissioners, and I'm sure have been extraordinarily helpful to Lord Hunt because they have, you know, now some experience. They have, you know, knowledge of the system, how it might work, and a lot to bring to the party, as it were. So I hope and trust that he's working closely with the lay commissioners on this. There are one or two things in it which we were already on that road following the government's review. For example, a new independent assessor. We already had introduced an independent reviewer to replace the chartered commissioner same person, but with additional powers and also we had interviewed and retained a review panel. Sadly I don't think they've actually started their work, but the whole point of their work was to actually look and spot-check the system within the PCC, but I think the point of going into newsrooms, of course, is would be extraordinarily helpful.
MR JAY
I'm looking at the future now. It was a very simple question: how does one bind everybody to the contract, including Mr Desmond?
A. I think it's very difficult. That's not to say I denigrate the proposal, because I think it's the right thing to do, but you'll notice with my witness statement I suggest, with some enormous regret, because I don't I mean, I don't regret saying what I say, but with some sadness I suggest that there may have to be some sort of backstop power for compliance with the system.
Q. Does that mean, so we're clear about it, that there is a piece of legislation which compels people to join?
A. In a sense, yes, it does, but for me that's very difficult because of course, you can't when looking at all of this, we're talking about a global industry now and you can't make the Huffington Post or anybody beyond our shores sign up to something. Do you include all the bloggers who hold themselves out and maybe are journalists? I think this whole thing you know, it's a good start. Let's put it that way. Again, I don't mean to denigrate it, but I think a lot of thought has to be given and I'm sure the reform committee are giving thought to how you encourage all those to come on board. I mean, kite mark, if I may say so, is something which I introduced as an idea and we were encouraging the industry to introduce and a lot have taken it on board on their websites, because my view is that if you have a kite mark at the top of a website which says, "This is regulated by the PCC", it gives it a sense of trust. You know, I'm much happier, if I go on a site, if I feel there's some oversight of that the site. I made a speech recently in the city, actually, on this subject, saying that it would be very good if we could encourage some sort of international collaboration on this with other press councils and so on.
Q. Do you
A. It's a big issue but it's important.
Q. Do you share Lord Hunt's view that we should be concerned about those in Parliament, whether it's Commons or the Lords and you're far more familiar with the Lords who might seek to use the legislation, which on the face of it was fairly innocuous, as a means of settling old scores against the press and introducing more Draconian statutory powers?
A. There is that there's always that question mark, of course. There's always the issue, which I used to find deeply frustrating as a shadow minister, that of course regulation doesn't stop rogue players. So regulation itself doesn't always isn't always a solution, but also there's always an issue here of unintended consequences. By introducing statute to underpin compliance with the system, there will be downside, or there would be downside. The upside, if at all possible, is to create a system which can rebuild trust between the press and the public, which of course is paramount, but which allows freedom of expression, and all I would say because it looks as though you're closing your file, if I may
Q. Yes, you're right.
A. For the most part, we're talking about an industry where people have and continue to play by the rules. So how do you change the culture because I think that's where it starts: governance, leadership at the top to actually encourage these guys to accept that change must take place. This isn't something which can be a quick fix, whereby okay, business can be back to usual, back to normal within a few weeks or months from now. There has to be
LORD JUSTICE LEVESON
Lady Buscombe, what you've just identified is the history of attempts to revisit this topic since the last war.
A. I've been reading re-reading Scoop!, sir, which just about sums it all up. I suggest it's not far from where you know, yes. The inbuilt culture of newsrooms is something which has to be thought through, and that's one of the reasons, by the way, sir, why I suggest a whistle-blowing a system of whistle-blowing in every organisation, because one has to question who might have known what about what was going on in some of these newsrooms but dare not speak out.
LORD JUSTICE LEVESON
One of the issues that we've had to address in the Inquiry, of course, is people who want to give evidence but are concerned about their positions.
A. Absolutely.
LORD JUSTICE LEVESON
But in relation to this topic that you've just mentioned, it's not entirely a favourable omen if your experience of editors has been not to say, "The PCC have criticised something we've done, we must make sure we get it right", but rather to say, "The PCC have criticised something we've done; how dare they?" That's a problem in itself, isn't it?
A. It is a problem in itself, and that's why I emphasise the fact that this is a minority.
LORD JUSTICE LEVESON
Oh yes.
A. Absolutely.
LORD JUSTICE LEVESON
I've no doubt about that, and I don't say that it's once a week, but it's extremely common that I have uttered the words in this Inquiry that the greater majority of the press are hard-working, enthusiastic, working absolutely for the public good and doing a wonderful job.
A. Yes. COURT: But the whole question of regulation, whether it's self-regulation or whatever sort of regulation you're talking about, has to cope with everybody, and in particular it has to cope with those who don't fall into that category.
A. Absolutely.
MR JAY
Thank you very much, Baroness Buscombe.
A. Thank you.
LORD JUSTICE LEVESON
Baroness Buscombe, thank you very much.
MS PHILLIPS
I'm sorry, could I just raise one point by way of clarification. I'm from the Guardian and you said that the Guardian threatened to resign over a critical adjudication.
A. Actually it wasn't over I'm glad you put me right. It wasn't over a critical adjudication. It was actually over the phone hacking. There was a telephone conversation between myself and the then managing director of Guardian Media Group where that was suggested that they may not need us.
MS PHILLIPS
And I think historically, just for the record, there was a previous incident in 2003 where the Guardian did threaten to resign, but not over a critical adjudication. Are you aware of that?
A. No, I don't know the details of that.
MS PHILLIPS
Thank you.
LORD JUSTICE LEVESON
Ms Phillips, thank you very much.
A. But my answer to that would be: it doesn't matter what the reason is; the threat is there, and that shows a reflection of respect for the system.
LORD JUSTICE LEVESON
Well, it actually identifies part of the problem, doesn't it?
A. Yes, it does.
LORD JUSTICE LEVESON
Thank you. Thank you very much.
A. Thank you.
LORD JUSTICE LEVESON
Right. Somebody else will look after all those for you.
A. Thank you.
MR BARR
Sir, the next witness is Mr Crowell. MR COLIN CROWELL (affirmed) Questions by MR BARR
MR BARR
Mr Crowell, if you could take a seat and make yourself comfortable, please. We have a statement from Twitter Information Network Limited, and then a voluntary statement from Twitter Incorporated. I know that you're not the author of those statements, but are you able to confirm that they're true and correct to the best of your knowledge and belief?
A. Yes.
Q. You are the head of global public policy for Twitter Incorporated, aren't you?
A. Correct.
Q. That role involves you overseeing Twitter's efforts to educate policy-makers on Twitter's services and to manage the company's public policy agenda on a host of high-tech issues in Washington DC and internationally?
A. Correct.
LORD JUSTICE LEVESON
So you're based in America?
A. I'm based in Washington DC.
LORD JUSTICE LEVESON
I hope you've not just had to come for me.
A. I was happy to do so.
LORD JUSTICE LEVESON
I'm very, very grateful to you for assisting in what is a tangential area but, to my mind, an extremely important one in the context of the way in which the approach to the world develops in the Internet age.
A. Right.
MR BARR
You tell us that your background was working for over 20 years as a telecommunications and Internet staffer to US representative Edward J. Markey, who is a long time chairman and ranking Democrat on the house telecommunications and Internet subcommittee and that after working on Capitol Hill, you were the senior councillor to the Federal Communications Commission chairman, Julius Genachowski, if I'm pronouncing it correct.
A. Well done.
Q. You were assisting in the development of the national broadband plan and serving as the chairman's strategic adviser on a wide range of policy and legal matters. Against that background, now, can I confirm that, as with the other large American companies that we've dealt with and we'll come to the size of Twitter in a moment, but as with Google and Microsoft, Twitter's policy is to have a small corporate footprint in the United Kingdom, Twitter Information Network Limited, but the main operation is based, in Twitter's case, in San Francisco in the United States?
A. That's correct.
Q. Unlike Google and Microsoft, Twitter is a much smaller company in terms of personnel, isn't it?
A. Correct.
Q. Approximately how many employees does Twitter employ?
A. I think roughly right now we have 700 employees.
Q. But in terms of the number of users, Twitter is anything but small. Can you tell us how many users use the Twitter service?
A. On a monthly basis, we have over 100 million active users. 70 per cent of our users are now outside of the United States, and by way of volume, the service has obviously grown enormously over the last several years. Twitter will turn six years old this coming May, and to give you a sense of the magnitude of the volume of the service, it took three years and two months to go from the very first tweet to the one billionth tweet. Three years and two months. We now serve a billion tweets every four days. So that's how quickly it has grown.
Q. Is it right that you operate not quite in every country in the world but in almost every country?
A. Obviously our corporate goal is to reach everybody on the planet. We are in most countries in the world. We are notably not in China, where we are blocked.
Q. Moving on to the service, with which many will be familiar, a tweet is a message up to 140 characters long?
A. Correct.
Q. A user has a profile and the user can opt to put up in his or her profile a picture and select a background as a minimum, and then can choose to add a short biography section and to give his or her location and also a url if so desired?
A. Yes.
Q. The system allows for anonymous use, doesn't it?
A. Correct.
Q. Obviously anonymity has both pros and cons. One of the cons is that it is easier, isn't it, for someone anonymously to send abusive messages or defamatory messages?
A. Certainly users can send such messages and they certainly can do that in pseudonymous or anonymous form. As you mentioned, there are two sides to that coin. I think most countries in the world recognise freedom of expression as a human right. Depending on the subject matter and to whom you're trying to speak or the particular jurisdiction you may find yourself, your freedom of expression and your ability to exercise it may hinge, in certain times, on your ability to speak fearlessly, and that often is anonymously or with a pseudonym.
Q. As for privacy settings, if I've understood it correctly, the default position is that a person who tweets is effectively tweeting instantly to an almost global audience?
A. Correct. The nature of Twitter's service is inherently public. People go to Twitter to tweet public messages and also to consume messages from others publicly. So that is an inherent characteristic of the service. You can, as you noted, change that setting to have private tweets, if you so choose.
Q. Because it's only by opting out of the default been setting that you get the private setting?
A. Correcting.
Q. And on the private setting, you choose who may and who may not read your tweets?
A. Correct.
Q. As for content, your terms of service are clear, that Twitter's position is that the user is responsible for the content that he or she tweets?
A. Correct.
Q. We see that set outright at the start of your terms of service. Can we come now to the question of removals, please. Again, your terms of service expressly reserve a right to remove content. So that is a mechanism, is it, by which Twitter has a contractual right to take material down?
A. That's right.
Q. There is a set of rules, the Twitter rules. Perhaps we could turn to those. They're at tab 5 of the bundle. There is a subheading, "Content boundaries and use of Twitter", and there, rather succinctly, are various boundaries delineated. First of all, impersonation, which is prohibited. Various matters on trademark, which we need not go to, and if we can pause at privacy. The rule on privacy is: "You may not publish or post other people's private and confidential information, such as credit card numbers, street address or social security/national identity numbers, without their express authorisation and permission." If I may say so, that's a rather limited and narrow definition of privacy. Does that reflect the fact that Twitter is essentially an American enterprise and to reflect American privacy laws?
A. I think what this reflects and again, the list there of credit card numbers, street address, social security numbers and the like is an illustrative list. There may be other this, for example, doesn't include private phone numbers and others which might also be included. But it is generally designed to capture information that is private that would have the ability to identify an individual person, and so it does reflect that American sort of legal sort of privacy tradition.
Q. If we go to the bottom of the page, we see "Unlawful use": "You may not use our service for any unlawful purposes or in furtherance of illegal activities. International users agree to comply with all local laws regarding online conduct and acceptable content." So is this where we see other national laws appearing
A. Correct.
Q. in the rules? Does that mean that a British tweeter needs to tweet content which is legal in Britain?
A. Well, that would be a determination for British policy makers and British courts.
Q. That takes us to what happens if someone in Britain does tweet something which falls on the wrong side of our defamation laws or on the wrong side of our privacy laws. Can we deal first of all with something which was contrary to our defamation laws? What can the victim of such a tweet do to have the tweet removed?
A. Presumably under the British system, if they were seeking recourse, they would go to a British legal authority. The British system has a mutual legal assistance treaty with the United States, and we could go then to the US jurisdiction. Twitter UK doesn't deal with content issues. That's within the purview of the US jurisdiction. So in that scenario, if we receive a duly served notice from an authorised entity in the UK dealing with something which has been deemed in the UK to be an "illegal tweet", then we will deal with that in the US on a case-by-case basis.
LORD JUSTICE LEVESON
There's a problem with that, isn't there, Mr Crowell, because if you can tweet anonymously, then I'm struggling to see how somebody who had been adversely affected by a tweet could do anything about it.
A. You have two separate issues. One is to deal with the tweet itself and whether or not that tweet should be subsequently withheld and grey-boxed out and indicated to users in the UK that the content has been withheld. In the US, under US law, which is our jurisdiction, we require a court order in order to turn over personal information about a Twitter account, and so that information could be sought but it would have to be through a court order pursuant to US law.
LORD JUSTICE LEVESON
But when you say you can tweet anonymously, do you know the name of the person who is in fact tweeting, even if he tweets in an anonymous name?
A. We have whatever account information that they have given us. So that account information is the information that can be sought.
LORD JUSTICE LEVESON
But it needn't be genuine?
A. It need not be verified; correct. Genuine.
LORD JUSTICE LEVESON
So in other words I'm sorry, Mr Barr, but let me think it through. In other words, if somebody is tweeting something that was unlawful or clearly defamatory on any jurisdictional basis, and you agreed that it was, so took it down, there would be nothing to stop that person setting up another account tomorrow in another name and doing exactly the same thing.
A. Correct.
LORD JUSTICE LEVESON
You don't need to persuade me that your 700 people can't read a billion tweets every four days, or indeed any of them.
A. We don't they certainly read some of them just out of sheer curiosity, but we wouldn't have the ability to mediate the content or filter it ahead of time. We cannot do that.
LORD JUSTICE LEVESON
Of course. So the only limiting feature is your 140 characters?
A. That is a limiting feature, yes.
MR BARR
Can you tweet a link?
A. Yes, and often Twitter is used as precisely that, sort of a pointer device where Twitter users will say, "Check out this website", and provide the link to content that is then hosted elsewhere on some other site.
Q. Am I right that, unlike the evidence we've heard from both Microsoft and from Google, your policy is strictly to work only in response to legal process, that you are not in a position to moderate a complaint which is submitted privately?
A. Correct. We would not want to put ourselves in the position of trying to adjudicate ourselves what is or what is not defamatory and so we would rely on legal process to determine that.
Q. Which obviously takes some time, during which time the tweet remains posted?
A. Correct.
Q. If a court order is obtained, is it right that that would be sufficient for you to take down the offending tweet and any exact retweets of the offending tweet?
A. Yes. As we when we receive that, we will address those on a case-by-case basis and then promptly take down the tweet or the account, and I think in tab 11, the second page, you see how the tweets would be withheld or the account withheld. So we do not simply make it disappear, but for purposes of transparency, we would indicate that the tweet had been withheld. It would be grey-boxed out, so to speak, so that other users would know within that jurisdiction that the tweet had been withheld.
Q. It's only grey-boxed within the jurisdiction in question?
A. Correct.
Q. So the tweet is still out there in the rest of the world?
A. Correct. Where the tweet is not illegal, it is available to other users worldwide.
Q. And if it's one which is illegal in many jurisdictions, the victim, if I use that pejorative term, has to go and get legal process in every jurisdiction, does he?
A. If the tweet were yes, we would need something from each jurisdiction to affirm that it is illegal in each of those jurisdictions.
Q. And if it was an anonymous tweet, effectively are you saying that the person would have to launch legal proceedings to try and get an order against the anonymous tweeter and the order would be sent to you, and even if you didn't know the name of the anonymous tweeter, you would have the account details so you could still grey-box the anonymous tweet?
A. Right. We would deal with the tweet at the tweet level. So if the tweet itself, regardless of whether the user is a verified user or using a pseudonym or is anonymous, and if the content of the tweet in a jurisdiction is determined to be illegal and through due process we're able to inform the user, provide transparency, we can grey-box out that tweet in that jurisdiction. The question of the disclosure of the personal information that we may possess about the tweeter, again, goes through a US court order in the United States, and we have been served those and we have complied with those.
Q. If a story spreads on Twitter and there are multiple people tweeting about it, you would require a court order in respect of each tweeting person before you would remove the content?
A. If there were individual unique tweets from those users, we would need and we would give due process to each of those users, yes.
Q. So does that, in practice, mean that if there is a story which is tweeted by many people, or a story which goes viral, to use the parlance, then the subject of that story, in effect, is going to find it impossible to prevent it being disseminated?
A. We only deal with the issues reactively, so, by definition, the tweets have already been posted. So this isn't something where ahead of time we're able to see the tweet, filter the tweet, mediate the tweet; the tweets flow, and so they're already out, and so everything we're talking about here is reactive to that. And so, yeah, if you're dealing with a single tweet that is on our service and that is the offending tweet at that point in time, we can deal with it. Obviously, if it's been retweeted by hundreds of users and also tweeted separately by other users and tweeted out of the jurisdiction, that tweet will effectively be in the public domain.
Q. Just to come on to the system you've got of withholding tweets within a jurisdiction, that's a very new development, isn't it?
A. Yeah, we announced this not yet two weeks ago.
Q. Has it been used yet?
A. Not yet.
LORD JUSTICE LEVESON
That's the one that requires the court order?
A. We've always required a court order for disclosing personal information, and we obviously have dealt with law enforcement in other countries. We deal with law enforcement in the UK, and so they the law enforcement entities here know the process in the US. For emergency purposes, we also have a process for UK law enforcement as well. But the process of withholding content that has already been tweeted and doing that in particular jurisdictions is new and reflects the fact that Twitter is now, from a corporate standpoint, growing internationally, and recognising that the contours of freedom of expression may differ from country to country. This gives us the ability to deal with those differences on a per-country basis. If we had not done this, we would be dealing everything out of the US jurisdiction and wouldn't be able to take into account the slightly different legal issues in other jurisdictions.
MR BARR
Could I ask about the speed of propagation? If a matter is going viral on the World Wide Web by being posted on differently urls, that's one thing, isn't it, but if something goes viral on Twitter, where people are communicating by very short messages, no more than 140 characters, perhaps with reference to an Internet link, just how quickly can a story go viral?
A. It depends on the subject, it depends on who's tweeting it and retweeting it. I mentioned that we now serve 250 million tweets a day, roughly. During major events, you know, the earthquake in Japan, tweets can propagate very quickly out of a particular jurisdiction, and often those tweets now today, because of instantaneous communication, are the first way in which people learn about events, including news organisations. We had one of the major events in the United States this past Sunday with the Superbowl, and leaving aside the fact that the wrong team prevailed in that game, we had a situation where if you go back to 2008, so four years ago, four years ago at the Superbowl, we reached a peak of tweets per second of 27 tweets per second during the Superbowl in 2008. In past Sunday, we reached a peak of more than 12,000 tweets per second during the game.
LORD JUSTICE LEVESON
All on the subject of the game?
A. It was a very important game. So issues like that, that have national significance and have captured the attention of the population, obviously can propagate much faster than things that may be more localised.
MR BARR
Can I now come to a question about future regulation of the press in this jurisdiction? If a future regulator makes decisions about what stories are or are not legal or are or are not in compliance with a code of practice, what is Twitter's approach likely to be in relation to such decisions? Perhaps I can start exploring this subject by asking you what are the touchstones that Twitter would use to decide whether or not a decision of such a regulator would be sufficient to cause it to take down a tweet?
A. I think the way we would look at it is whether or not the regulator is for that country, that jurisdiction, the entity which has the legal authority to effectuate it. For us there would be a difference between an organisation that might urge entities to adopt voluntary codes of best practices, engage in hortatory rhetoric towards industry participants or an entity that actually had legal authority with teeth to effectuate something that was binding within, say, the UK in this case. The policy that we announced two weeks ago was to essentially generically deal with these issues on a per-country basis in many countries around the world, and the way we described it was that when an authorised entity were to convey through proper legal channels to us in the United States, then we would deal with that on a case-by-case basis, informing the users, being transparent about it, and so it would really be up to British policy-makers and British courts to determine what the authorised entity would be here.
Q. Finally, on the question of the breach by tweeters of injunctions in this jurisdiction, is it right that if a person commits contempt of court by breaching an injunction in this jurisdiction, that the authorities here can apply via a US court to Twitter to obtain the identity of the person, where it's known, who has made the tweet?
A. We have a requirement under US law, before we turn over any personal information on the users, to do so only pursuant to a court order. So to the extent to which a British court ruling leads to a US court order that is served on us to compel that information, we'll obviously comply with that.
Q. And if it was an anonymous tweet, then although you wouldn't be able to provide the name, there would be information that you would have?
A. The Twitter may be anonymous to other Twitter users. Whether they have given us personal information, or whatever personal information we may have, a contact email, whatever it may be, that's the personal information, and whatever personal information we have and are served to and are compelled to turn over, then we will obviously do that.
MR BARR
Thank you. Those were all my questions.
LORD JUSTICE LEVESON
Can I ask one more question? How long do tweets survive?
A. How long do they exist?
LORD JUSTICE LEVESON
In other words, do they remain on the system forever, or do they drop off?
A. Eventually they will drop off, simply due to server capacity, but I can't tell you how long exactly they last. I would also suggest that some people post tweets to other websites, and obviously if people took a screenshot of it or embedded that tweet and posted it to another website
LORD JUSTICE LEVESON
Then it's there forever?
A. Correct.
LORD JUSTICE LEVESON
Yes, I understand that. I understand that. All right. Mr Crowell, thank you very much indeed. That's fascinating and a very interesting illustration of the impact of new methods of communication. The numbers are, quite frankly, bewildering. Thank you very much indeed for coming.
A. Sure thing.
LORD JUSTICE LEVESON
And for taking the trip.
A. Thank you.
LORD JUSTICE LEVESON
Right. Rather than start the next witness now, can we start at 1.55 pm. I hope that's not inconvenient. Thank you. (12.57 pm)
