Morning Hearing on 10 July 2012

Professor Chris Frost , Lord Hunt of Wirral and Michelle Stanistreet gave statements at this hearing

Hearing Transcript

(10.00 am) LORD JUSTICE LEVESON I have misstated the position in relation to Associated Newspapers Limited, for which I apologise. I intend now to hand down a ruling dealing with the way forward in connection with the issue that has been raised. MR JAY Sir, we're continuing with Lord Hunt. LORD JUSTICE LEVESON Thank you very much. LORD HUNT OF WIRRELL (continued) Questions by MR JAY (continued) MR JAY May we look now at paragraph 42 of your statement, our page 00812, where you deal with the issue of coverage. You say that universal application is utopian but the credibility of the new system could be fatally undermined if any genuinely big fish seek to escape the net. Northern Shell, I suppose, would be a genuinely big fish, would it?
A. I think I mentioned yesterday that there was a previous large publisher who had threatened to withdraw. I am not sure it's a good idea to try and concentrate on one or the other when they have all told me that they are ready, willing and able to sign up.
Q. I'm just seeking to define your terms. I mean, there are bigger fish in the pond, but it's pretty big, Northern Shell, isn't it? It would meet this criterion?
A. Well, I've met their editors, I've met Richard Desmond, I've met Paul Ashford, and I'm impressed with their determination now to move ahead with the new body and to make a fresh start.
Q. Have you had anything in writing LORD JUSTICE LEVESON With great respect, Lord Hunt, that doesn't actually answer Mr Jay's question. Mr Jay's question was, I think, comparatively straightforward: do you agree that Northern Shell are big fish within the terms that you seek to identify in paragraph 42 of your statement?
A. Yes. LORD JUSTICE LEVESON Thank you. MR JAY Have you had anything in writing from them on Lord Black's proposal, in particular, whether all aspects of that proposal are acceptable to Northern Shell?
A. I have seen a letter, just seen a letter, where Northern Shell express doubt as to whether the press card solution is the right way forward. This echoes something that someone I also respect, Dr Moore, had made the point to me that any system of licensing or press cards is something that he too would find difficult to accept, but the letter from Northern Shell reiterated the point that they are ready, willing to sign up to the new body.
Q. May I ask you, to whom was that letter addressed?
A. To the my recollection is it was to the Press Card Authority.
Q. And its approximate date?
A. Last week. I don't have it with me, but I can arrange for you to have a copy.
Q. Well, the Inquiry will have to consider that issue, but of course if they don't sign up and the devil is in the detail, then immediately the credibility of the new system would have been fatally undermined. That must follow, mustn't it?
A. Yes. Mr Jay, you've asked me whether a statute-backed system might not achieve the same outcome as a voluntary contract-based system. Well, the answer is yes, on paper it might. But from day one, I believe it would be a fundamentally different beast from the one I'm proposing and I would turn the question around. Any system founded in statute would be adversarial, and I could expand on that as and when you would like me to do so, but on balance I far prefer going down the contractual route. But as Dr Moore pointed out to me, the jury and indeed if I'm allowed to add, also the judge is still out on that issue. LORD JUSTICE LEVESON Yes, well, you're absolutely right about that, but why would a system necessarily be adversarial simply because it was underpinned by statute?
A. Yes, it's the question of what does "underpinning" mean. The system which would be based in statute would, I'm sure, inevitably cost more. It would have to be funded by the hard-pressed taxpayer, by complainants or by an industry in decline. Its boundaries would be set. No one would ever join it voluntarily so it could take little or no account of rapid technological and social change, and unlike the contract-based system which I'm advocating, which could be up and running in a matter of months, any statutory underpinning would take years. I confidently predict that, and what in the meantime are we to do? MR JAY May we look at those? Why would it inevitably cost more? That would depend on what it did, wouldn't it?
A. I suppose I'm just giving you the benefit of my 36 years in Parliament. I've never known a statute underestimate the cost of any system it seeks to impose. I've no need, I hope, to go into the Dangerous Dogs Act or the Dangerous Dogs Amendment Act or indeed the Industrial Relations Act, which was on the statute book when I first entered politics. There are numerous examples, whereas if I put anything across, it is that I'm enthusiastic to proceed. I think we have a wonderful opportunity to get this system up and running, and my fellow commissioners on the PCC have given me authority to say to this Inquiry: if we receive a green light, we will immediately move to set up the new body.
Q. In terms of funding, is there anything wrong in principle with a system which has a mixture of state and industry funding?
A. Yes, because as Ofcom has discovered, state funding is always limited and usually cut. My greatest arguments when I was a departmental minister were never with the Opposition; they were always with the Treasury.
Q. If we're talking about a system which, on any view, would cost less than ?10 million a year, or, on your calculation, significantly less than that, and the funding pot were derived from a mixture of state funding and industry funding, would there really be a debate over quite small amounts of money?
A. I believe whenever a penny of public money is spent, there comes into play a system of, quite rightly, scrutinising the validity of every penny. Of course, under corporate governance that should happen anyway, but in corporate governance it does not require an appearance before the public accounts committee and indeed an accounting officer who can be subjected to very close scrutiny. I just want the voluntary system to move ahead by consensus, by agreement and by contract, not requiring public subsidy.
Q. It might be said that public subsidy, or at least a degree of such subsidy, is a virtue insofar as (a) it contributes to the pot, and (b) insofar as there is a public element, it is subject to public accountability, if necessary before a committee in Parliament, so that rigour is maintained over the level of spending. Do you agree with that?
A. Most of it, yes. My concern, really, on behalf of the taxpayer, so to speak, is to see some meat on the arbitral arm, which is as yet unclear as to how that would benefit the taxpayer by moving a system of compensation away from court-dominated and lawyer-dominated argument, and I personally find the way the Calcutt privacy committee was looking at some form of tribunal-based system and indeed a number of commentators saying that there would be a senior figure but flanked by a member of the public, an independent person and by someone who represents the industry if that could be done, I think that would justify the taxpayer investing in such a scheme for the benefit of the public, but at the moment I can't see that I could persuade the taxpayer, and indeed the public, that they should dip their hands in their pockets at this particularly difficult time to find money to finance the regulation of the press.
Q. You have a fundamental objection as well. You say: "Any statutory system would be adversarial." You may mean "confrontational". But might it be said that that's the wrong characterisation? It would be wholly independent, it would be wholly at arm's length from the regulated entities, and although that may create a degree of constructive tension, to use someone else's phrase, that is desirable rather than undesirable. Would you accept that?
A. Not not not really. I think it's up to others to judge. Perhaps I'm too close to this subject, but I do know that there are a number of Parliamentarians who are intent on clipping the wings of the press, and we've heard from a number of senior political figures at this Inquiry. All of them have made it clear that they would support statutory intervention against the press only reluctantly and only as a last resort, which is why I'm pleading for an opportunity to make progress now.
Q. But doesn't that statement, though, from Parliamentarians who have testified and ex-Parliamentarians indicate that they wouldn't in fact clip the wings of the press if a statute were introduced because they are so respectful of the principle of freedom of the press? So doesn't that point the other way?
A. Well, I do speak as a former deputy chief whip and I can assure this Inquiry that there's nothing very edifying or democratic about MPs voting for a measure that deep down they believe to be wrong and ultimately unnecessary. LORD JUSTICE LEVESON Well, if that's right that they do consider it ultimately unnecessary and of course, ultimately, this whole issue will revert back to the politicians. You say, "If we receive a green light, we'll set up a new system"; I'm afraid I don't have coloured lights in my armoury. I will provide a report which will make a recommendation but it won't be my decision, as I'm sure you appreciate.
A. I do appreciate, sir, but I do think you have an unrivalled opportunity now to set the agenda. Whether others will accept that agenda and I hope I can influence you in what that agenda should be. LORD JUSTICE LEVESON I understand. Just on the adversarial side, isn't there some value to be obtained from a system that is inquisitorial? In other words, whether you have a mechanism that is resolving disputes, it doesn't necessarily have to be adversarial; it can be whoever is responsible for resolving the dispute, as it were, taking up the cudgels, rather as these inquiries or inquiries under the Inquiries Act have undertaken. I'm not suggesting you want a system like this, but it's a different process.
A. Yes. LORD JUSTICE LEVESON Could that work?
A. I just my basic premise is that I believe the sensible approach would be to avoid all government involvement in this process. That's my instinctive reaction but I recognise there are others who will come to a different conclusion. But I certainly don't like the idea of setting up what, in effect, would be censorship and licensing powers over a constituent part of the press to a body vested with responsibilities for the whole of the press. There are a number of elements here which I find very difficult to absorb at a time when I see the way ahead so clearly. LORD JUSTICE LEVESON Well, I hope I've made it clear that I have absolutely no truck with anything that's going to lead to censorship. That I don't mind revealing immediately. I think I've said it many times. Yes? MR JAY I must say, juridically, Lord Hunt, I have difficulty with even grasping your fear. If the statutes and it would be in the primary legislation said in terms that the regulator would expressly have no role over matters of taste, decency and editorial content, save as expressly provided for, and that would be specifically in the areas of correcting inaccuracy, dealing with harassment and intrusions into privacy, then this wouldn't be censorship; it would be merely doing that which your contractual system aims to do in any event. I don't even see how the concern can sensibly be articulated, with respect. Do you see my slight frustration on this? It's tilting at a windmill, frankly, which simply doesn't exist, with respect.
A. I certainly don't want to be quixotically chivalrous, but I think you have in fact answered your own question because you raised so many issues in the question. Taste and decency are not part of the regulatory process that I'm envisaging. Certainly editorial content vis-a-vis the editorial code is a key feature of any cultural change that needs to take place, but it doesn't need a statute to back it up. Do we really need a press law to highlight the need for a cultural change, which I find everyone to whom I've spoken accepts the need for that cultural change.
Q. Okay, if you forgive me, I'm going to move on from that point. But would you agree with this point: that if, for the sake of argument, this Inquiry were to recommend some form of contractual solution, Lord Hunt, but before that moment publishers have not signed up to the system because they might be awaiting the outcome of this Inquiry and its report, isn't there then a danger that the more difficult members of the constituency, as it were, would say, "We're not going to sign up to Lord Black's proposal as currently constituted; we're going to sign up to a weaker version, a softer version", and at that point there would be nothing anyone could do about it. Would you agree?
A. Well, there's always opportunity to do something about it. The only time you can't do anything is what you've got a law, a statute, on the statute book, which is completely inflexible. But if I may for a moment take the Irish Press Council as an example, that was set up before the Defamation Act. Is there any reason why we shouldn't now proceed to set up this new body? I'm just at a loss to understand why we can't make progress but I'm only here to make a proposal, not to make decisions.
Q. But I think you're saying, Lord Hunt, that in fact the publishers are almost pen poised, ready, willing and able to sign up almost tomorrow the current version of the Lord Black proposal. Is that your understanding?
A. Yes, but the problems are caused by am I allowed to say "the lawyers"? Who may well say, "Before you sign, you need a bit more detail on this or a bit more detail on that." The publishers that I've met just want to get on with it. LORD JUSTICE LEVESON Problems with lawyers. Yes? MR JAY Paragraph 46 now of your statement, Lord Hunt. Our page 00813.
A. Yes.
Q. You plead: "The new regulator must invest significantly in improving the mediation service it offers." To what extent is this investment covered by Lord Black's proposal and the proposed budget for a new model? We had the figures yesterday: 1.95 million for the PCC as is, 2.25 plus an enforcement fund for the new regulator as will be. Is there enough money for this significant investment you're referring to?
A. Yes. May I add to what I said yesterday? I was asked how many complaints had been resolved since I was last here and I gave the figure of 260. I was asked whether that was to the satisfaction of the complainant and I'm told by my colleagues in the Press Complaints Commission that 77 per cent of complainants have returned forms saying they're very satisfied. But I should point out that during that period we have actually received 2,900 complaints and issued 1,011 rulings, and also pointed out, particularly to those who want to object to the postman delivering the newspapers, that certain complaints fall outside our remit. But I'm not sure there is a depth of understanding of the valuable work still being done by the Press Complaints Commission that my eight staff have said to me they would be very happy if anybody wished to visit the Commission to see how this ongoing work is proving to be so successful. But of course we can invest more in mediation, and that's very much their wish, as long as and they are united on this please don't extend compensation as one of the options, because that would get in the way of mediation. LORD JUSTICE LEVESON Could I just understand the numbers and what the number 260 means or whether it was just an error. When you say you've issued 1,011 rulings or 2,900 complaints received and you've had 77 per cent of complainants who have returned forms saying they're satisfied, is that 77 per cent of 1,000, 77 per cent of 3,000? What are we talking about?
A. No, it's 77 per cent of the 260. The 1,011 rulings will include decisions where there's no breach of the code, where there is a breach of the code, where matters proceed to adjudication. If I erred, it was in answering the question, which I thought was: how many complaints have been resolved? LORD JUSTICE LEVESON All right. Well, I'll consider whether it's appropriate to visit the PCC. At the very beginning of this exercise it seems a very long time ago I did visit a number of newsrooms and I'll think about that. Thank you. MR JAY Can I ask you about one aspect of the Irish system, which you touch on in paragraphs 47 to 49 of your statement, page 00814.
A. Yes.
Q. This is a point of principle, really. In the Irish statute, which is the defamation bill 2009: "The court may take into account, amongst other things, the extent to which the person adhered to the codes of standards of the Press Council and abided by determinations of the press ombudsman and determinations of the Press Council." So, in other words, someone who signed up to the regulatory system may well be in a better position than someone who's not; is that right?
A. Why correct, yes.
Q. But the point of principle is this, I suppose: why, in a defamation case, should a responsible publisher be treated differently depending on whether he or she or it was or was not a member of the relevant Press Council?
A. I think there are a number of questions relating to the Irish model, and I did my best to seek to understand any questions in my mind when I went to Dublin. I don't believe the Irish model would work as a sufficient incentive. Self-regulation should, in my view, be a sufficient incentive, but nonetheless, all the big players have signed up, and so this model can work and there are benefits which could read across, which I think could be justified, such as linking a Reynolds-style defence to membership of a recognised regulatory structure. I don't see any unfairness in that. It is a recognition that that is the right thing to do.
Q. I suppose my point is that, judged objectively, the behaviour of the non-regulated person is exactly the same as the behaviour of the regulated person, but the regulated person has an additional advantage in relation to a defence which it can deploy in court proceedings, but if there is no objective difference between the behaviour of person A, who is regulated, and person B, who is not regulated, why is the former in a better position?
A. Because there is a behaviour one wishes to encourage, and that behaviour is to subscribe to an ethical code, to a code which is clearly laid out, and relates to every part of the actions of the publisher, so isn't it a good way forward to encourage everyone to sign up? Which is really back to my contract-based solution.
Q. I suppose the justification may be one of two things. Either it could be said as a matter of principle: because the person has signed up to a code, although its behaviour in the individual case may be exactly the same as the non-regulated person's behaviour, it's demonstrated a commitment to a standard of ethical comportment, which requires recognition. I suppose that may be one justification. The other may be a purely pragmatic one: that you want people to join the system, and rightly or wrongly, this is one carrot which entices people so to join. Would that accurately summarise the issue, do you think?
A. I think it demonstrates that there is a very strong case for a significantly greater alternative dispute resolution offering within the regulatory structure, whether it's arbitration or mediation, and that was the main conclusion I came away with from Dublin, but there is no direct read across, and much will depend on the Defamation Act next year when it finally emerges.
Q. If we look at one other possible carrot or stick, however you want to characterise it. Paragraph 50 of your statement, 00815. When you say that "the question of whether or not a publication has signed up might also be taken into account by the courts when making awards", you're referring to awards of damages. Do you have in mind the ability to award exemplary damages if you're not a signed-up person? Or what do you have in mind there?
A. I think this is not an area where please rely on my expertise, but all I'm really making the point here is that I think this is an additional method of taking into account good behaviour. No doubt we may come on to my concept that there should be a badge or kite mark associated with those publications online and in the press who subscribe to the code.
Q. So paragraph 51 is really a marker? You're asking us to think about the detail?
A. 51 or 50?
Q. 50, pardon me.
A. Yes, it's a suggestion, but LORD JUSTICE LEVESON It's been suggested that when I raised this question that I'm seeking to punish those who aren't in a system. That's not the purpose at all, and one has to be very careful that somebody who is libelled or whose privacy is invaded is just has been just as libelled and their privacy has just as much been invaded whether it's been by a good publisher or by a "bad publisher". The issue that I was raising and if you have any comment, I'd be very interested to receive it was whether one couldn't say that it was relevant to the assessment of culpability for the purposes of damages that a publisher did have a system of checks and balances internally for the way in which they decided what stories to publish and could demonstrate that they had such a system, one way of which being that they were part of a regulated regime. Not necessarily the only way, but the easiest way.
A. Yes, I agree with every word you've just said. I wouldn't want to divert you into any other route than finding a way of recognising good behaviour but certainly I would not want to influence judicial opinion on what constitutes a libel or slander or an unjustified invasion of privacy. But I'm hoping that the system which I'm seeking to set in place would mean a substantial reduction in those cases. LORD JUSTICE LEVESON But the snag with the system that you've suggested is that it's quite difficult to see how the law could take account of what was simply a private arrangement between members of the press. That's the issue. There has to be some touchstone which the law can recognise.
A. Yes. I agree. That is really what I would very much want to see, that touchstone recognised by the law. MR JAY You say that, don't you, towards the end of paragraph 49. You would like to see recognition in the statute, but there is a fundamental difference of principle between recognition and creation?
A. Yes.
Q. We're not going to go back into the philosophical debate. We've flogged that one. May we move on, though, to pick up a point which you raised in relation to the badge system? It's paragraph 53 of your statement. It's a form of kite mark, I suppose. People wear it with pride. May I ask you, please, to explain why you think that would be an advantage?
A. I've just had a very productive meeting with representatives from the BSI, and I found there that we were discussing the same agenda and I certainly believe a proposed badge would be crucially important, greatly increasing the credibility and visibility of the system and restoring public confidence as well as promoting accountability in the industry. Adherence to the new regulator just really has to be demonstrated much more visibly with much more visibility than it is at the present time.
Q. Wouldn't some publications almost wear the absence of the badge as an insignia of pride, if I can put it in those terms, that they are metaphorically cocking a snook at the system and saying, "We aren't signed up to this, it's an old boy's network" or whatever disparaging term they choose to deploy "Read us because we are outside the system"? Isn't there that risk?
A. Yes. It doesn't mean we change our minds about how the system should be fashioned, because in my experience there are always those who wish to make a feature of the fact that they do not subscribe.
Q. Looking at the public as a whole, is it your view that the public would be more likely to read or want to read the badged publication as opposed to the unbadged publication?
A. I would want to encourage that.
Q. I'm sure, but would they?
A. One thing which I had been contemplating is that at some stage we ought to have a public consultation, but I felt that to do anything in that direction would be wrong pending the result of this Inquiry. But certainly my experience in meeting people is that there are very few I've met who would say that they would prefer to read a publication which had no badge of respectability, accuracy or adherence to the Editors' Code. But they exist, I'm sure.
Q. Yes.
A. But not in huge numbers.
Q. Well, I'm sure some publications would take a pride in it and it's possible even to name one or two, but I am not going to now. We all have in mind one in particular, but let's move on.
A. Well, Shrewsbury School has produced a lot of good papers. The magazine to which you might be referring is just one of them.
Q. May I move on now, please, to paragraph 62 of your statement, Lord Hunt, at page 00818. You're dealing with the Editors' Code. You make the perfectly fair point and others have picked up on this and will elaborate it next Monday that: "Much of the language of or in the code is negative, detailing what journalists must not do." And you believe the regulator must do yet more positively to promote recommended practice across the industry. So are you saying that the code could be improved not merely to identify that which is bad but to accentuate that which is good?
A. Yes. This was very much a feature of the work that Sir Ian Kennedy did with the General Medical Council and indeed the Law Society has done: concentrate on what makes a good doctor or a good solicitor, rather than seeking to identify the features of someone who could be described as a bad doctor or bad solicitor. I would like to see much more positive emphasis in the code.
Q. Do you feel that a Code Committee, however designated, substantially comprised of editors, would achieve that aspiration?
A. Yes.
Q. And why do you say that?
A. Well, I have attended meetings of the Code Committee and I'm impressed by their determination to set the gold standard, to set a code which everyone can subscribe to and which can justify the preamble, which is part of the code, that all members of the press have a duty to maintain the highest professional standards.
Q. These are all statements of aspiration. Have you explained, though, your idea to editors, that that which is necessary is not merely the denigration of the bad but the upholding of the good? Have you grappled with this particular point? If so, what has been editorial reaction to it?
A. Well, I have discussed it with a number of editors who do not seek to contradict, but I'd be unfair on them if I didn't say they felt there were other priorities.
Q. Another point you make is the expectation that editors on this committee will leave their baggage at the door, as it were, if I've correctly summarised what you it's not quite how you put it, to be fair to you. It's paragraph 68. You say: "They must undertake to divest themselves of all sectional and/or special interests and considerations in their work for the regulator." That, of course, has been the position to date, hasn't it?
A. We're not talking about the Code Committee any more; we're now talking about the complaints and mediation arm?
Q. Yes.
A. Yes.
Q. But it applies equally to the Code Committee, doesn't it, the same principle?
A. Yes, I think that in the handling of complaints and mediation, that is where I can testify that I find the contribution of the editors in dealing with each and every complaint which has been adjudicated on where I have been in the chair the contribution is exceedingly valuable and you cannot predict, because of their background, where they will be coming from, nor indeed where they feel that the adjudication should go, and I am very impressed with their contribution. May I just point out that the majority of the editors on the Commission represent not only local and regional press, press outside London, but also magazines and agencies, so there is a broad spread. As we dealt yesterday with the numbers of editors, there are huge numbers of editors now, and indeed one argument, if you're coming on to other suggestions as to how we proceed just to take in isolation what is referred to sometimes as a London-centric problem is to misunderstand the nature. About 50 per cent 45 per cent, 50 per cent of all the complaints we receive are against local or regional newspapers and magazines. My head of complaints reminded me that often local and regional newspapers will go down the road of identifying victims of sexual-oriented crime perhaps sometimes that is the essence of the complaint of the member of the public and identifying addresses. That's always quite a key part of our work. So I wouldn't want to try and put across that we are just dealing with problems amongst larger newspapers in isolation.
Q. Thank you. Moving forward through your statement, paragraph 77, when you talk about this is our page 00823: "All regulated publishers will be expected to put in place effective internal compliance procedures. There should be a named senior member of staff responsible for overseeing standards within each publisher." How do you believe that that will be brought about, Lord Hunt?
A. Initially by agreement and some have taken this step already but certainly it should be a matter for the contract and for the regulator, and we would want a requirement to provide accurate, comprehensive information reporting on the internal compliance and complaints-handling mechanism.
Q. In your discussions with publishers, have many or most of them accepted that there are issues, problems in relation to the culture, practices and ethics of the press which this Inquiry has demonstrated and/or otherwise been established to their satisfaction? Or are many or most of them saying that these are isolated matters which really have been overstated, overblown by, for example, this Inquiry?
A. I think there's a ready acceptance that there is a perception that the culture, ethics and practices of the press need to be improved. The publishers I meet accept that perception and want to do something about it. Again, I mustn't go too far back, but when I had the responsibility of setting up the Nolan Inquiry into conduct in public life, I remember Michael Nolan reminded the world that it was the perception that was the problem, not the actual bad behaviour, and I think the same is present today. LORD JUSTICE LEVESON Well, it's not merely the perception. Whatever might have been the position in relation to Lord Nolan, there's certainly a fair amount of evidence I've heard which suggests that this perception is entirely well grounded.
A. Yes, I think that my example would be to exclude any criminal activities, any activities which are directly contrary to the law, in particular the criminal law, but I was with Mr Jay referring to the perception that there's something wider and deeper in the culture, ethics and practices of the press, which I don't think is justified, but that perception has to be tackled. LORD JUSTICE LEVESON Could I take you down a slight tangent in relation to the criminal law? Would you agree that it isn't entirely satisfactory simply to say, "Well, if an offence has been committed, that's a matter for the police and nobody should be concerned with that"?
A. I strongly agree. I'm enthusiastic to see the Editors' Code becoming very much part and parcel of the ethical code which governs the whole industry, and I think here we have a very good start, and therefore any and I know there are disagreements about whether journalism is a profession or an industry or a trade. Whatever it is, those journalists I meet want to subscribe to the highest possible professional standards and are embarrassed by the fact that those standards are not observed by what I would refer to as a small minority. But that gives rise to the perception which I think Mr Jay was asking me about. LORD JUSTICE LEVESON Yes. Sorry to go down a side road. MR JAY May I move forward to what you say in relation to whistle-blowing, paragraph 92. Each regulated publisher, you say, should be required by the new regulator to provide an externally run whistle-blowing service for all employees, but this would require prescription under the terms of the PIDA, so it would be some form of statutory underpinning but by secondary legislation of a regulator which had already been created by agreement. Have I correctly understood it?
A. I want anyone who feels that the code is not being observed, that they are being asked to do something contrary to the code as well as the criminal law, that there should be the opportunity to communicate on a strictly private and confidential basis with the regulator to share the problem. But equally, I would hope that the industry had provided that individual with a mechanism within the organisation to do that first.
Q. On a related theme, may I go back to a point which was touched on yesterday, that when one is looking at press representation, either in the trust board or in the Code Committee or in the complaints body, one is looking always, on Lord Black's model and your proposal as well, at editors. There's an absence of any reference to journalists. You say, I think, journalists can come in through the lay representations provisions, but isn't it, as a matter of principle, desirable that there should be representation of journalists, possibly on the board but certainly in the complaints-handling wing of the regulator and also in the Code Committee wing of the regulator?
A. Yes, I have had representations from the Chartered Institute of Journalists and the National Union of Journalists that there should be more representation and that's certainly something the industry should consider, but I wouldn't want to dictate how they should respond to that request.
Q. At the moment, we see from Lord Black's proposal that consideration has already been made to that possibility and journalists are not going to be represented; it's only going to be editors. Shouldn't there be a mandatory requirement that we see the largest group of journalists, which I understand to be the NUJ, clearly represented on not the trust body but that could be open for debate but the Code Committee and the complaints-handling wing? That would offer a fresh and a different perspective, perhaps, from that which we would see from editors, wouldn't it?
A. I find it very difficult to answer this question because I'm seeking to retain my independence from the industry response. But I did set out, right at the start, in that document I presented to a range of people, not just editors but over 50 people representing the industry. I did hallmark editors as key, and I think editors are key. The extent to which other sections of the industry are represented I think must be a matter for the industry, and I realise that there are areas of divergence between Lord Black's proposal and my proposal, but that's for others to judge, and I do include this whistle-blowing as a possible trigger for a standards investigation, whereas I see that's not and there are other I also believe critical adjudications should be flagged on the front page. What I don't want you to feel is that I'm just accepting whatever the industry comes forward with, but I do think editors are key and they set the standards and they set the ethical code and that's where I think the very foundation of the new structure that I'm proposing must be based.
Q. But you've only spoken really to proprietors and editors. You defined your own terms by saying the editors are the key, but journalists would say, "Well, we are the keys, and there are many more of us than editors." You've created a system which is self-defining, self-limiting, and really establishment-minded, haven't you? Isn't it essential that you burst it open, not to have the majority of journalists I'm not suggesting that; others might, however but to have some mandatory representation by journalists, really to shake the cage, which is what this industry arguably needs, Lord Hunt; isn't that fair?
A. Well, I think anyone who's had my experience with journalists would know that journalists feature right at the heart of my career and my experience. It's only on very rare occasions that I have the opportunity to talk to editors. Most of my discussions have taken place with journalists, and indeed the National Union of Journalists laid on a public meeting, which I attended, which I found to be one of the most useful meetings, mainly because it came on at the time I was seeing Chris Jefferies and talking through with him how we are going to resolve matters. Please don't feel that I am overinfluenced by editors, but they are the leaders and they are widely respected within their publications, and often, sadly because of the decline of the industry, they remain the main individuals who are responsible for editorial content in the local and regional press. LORD JUSTICE LEVESON I understand that, but could I just pick you up on something you said just a moment ago? You made it clear that you're not necessarily just accepting whatever the industry comes forward with, and that, of course, is an important mark of independence, not just for independence sake but because you're bringing a fresh mind to it. But doesn't that mean that your observation in the same answer, that the extent to which other sections of the industry are represented must be a matter for the industry, doesn't really work? Aren't you able to say, "Well, actually, I want an independent operation, I'm going to be independent, and I think it needs this, that and the other"?
A. I agree. MR JAY Well, there's a mismatch then between what Lord Justice Leveson was putting to you and your position. If it's a matter for the industry, one ends up with a system which principally they want but of course they'll understand that they have to move a certain distance to arguably a more liberal position, otherwise they face the clashing of the sword of Damocles on their heads. But if you have a system which the public want or might meet a more objective standard of desirability, then you need some other entity to create that and we're back to our statute, aren't we?
A. Oh no, I don't think we're back to the statute, but I recognise that all these points are right at the heart of what I'm soaking to propose, that the new body, the fresh start, should be seen as just that. It's not a PCC2 or PCC Plus. It is a new body and it does have to be staffed, manned and worked by an amalgam of the best possible independent people, chosen and appointed by a widely recognised, completely independent process, and representatives of the industry who are clearly seen as such and represent all the best parts of the industry, and I detect, certainly from the Society of Editors, that they feel there is widespread support for what is proposed by Lord Black. I just keep repeating, perhaps too often, that the industry has come a very long way. When I had my meetings with journalists and one of the main editors asked me to meet all his journalists at what is known as quite a testing time for any individual and it's a great privilege to be asked to speak to all the journalists. I did that. The main problem they identified was that it was very difficult to visualise a new body which would seek to regulate such a diverse industry as the full newspaper and magazine industry. But no one said, "Don't try", but everyone's aware that it's going to be a difficult and challenging process.
Q. Can we look at the complaints function of the new regulator. You make it clear, Lord Hunt, in paragraph 101 of your statement that in your view, the existing complaints function of the PCC is very effective, from which starting point I suppose is might be said that very little needs to be done to the current complaints system to make it entirely fit for purpose; is that right?
A. Well, I feel strongly that the complaints should be directed at the newspaper first. I've had some very fruitful discussions with publishers on that point. Of course people who are aggrieved should have an immediate point of contact and the newspaper or magazines should alert them to the direct telephone number, the direct email address to which an aggrieved person, even before a story has appeared but after a reporter or a photographer had been involved they should have the opportunity of getting straight through, and I think that would be a major improvement. At the moment, although it's important people should still have the option to come to the regulator first if they want to, that is at the moment the present position. I do believe that as publications improve their internal systems, perhaps appointing readers editors, publicising contact details more effectively, encouraging feedback and so on, that will encourage readers and publications to build constructive relationships directly.
Q. In terms of what the new regulator would be doing, you describe what the PCC currently does at paragraph 104 as a process of brokered or proxy negotiation, not mediation. Do you see that?
A. Yes.
Q. Is that what you think should happen under the new system?
A. Well, I face-to-face mediation, for example, at the PCC is very rare. I think it is a process that has brought some notable successes in the past and I think it would be very valuable for the new body to develop that work further, and I think there are a number of ideas of that nature which I would want to see take place. LORD JUSTICE LEVESON Is this brokered or proxy negotiation driven by the person from the PCC who is operating it or is it simply a postbox? I don't mean that term too derisively, but I am concerned that individuals who complain do not have the knowledge, the understanding, the background to take on a newspaper that is well used to this sort of problem, and therefore may rather more easily be I was going to say "fobbed off", but let me be more polite be more prepared to accept a solution where somebody who understood what had gone on would say, "No, that's not good enough." I'm just keen to know whether the PCC sees itself as passing the complaint on and making sure there is communication, or whether it sees itself also as advising a person who is complaining about how far they can and perhaps should go in relation to a particular complaint.
A. Well, sir, I think you would find, if you were to sit with our team who answer the telephone, that they do guide, they do help, they do advise as to the best way forward, and they do refer a complaint to the publication and do so with the necessary background expertise. But I have found in my visits particularly to local and regional press that they would far prefer the individual to have telephoned them first, particularly in cases of clear inaccuracy. I've heard from those local and regional press: "Please, just tell us and we'll sort it and we'll sort it quickly." There is now this culture, which has improved beyond measure, of a willingness to try and rectify any immediate problems straight away, and therefore there is no need for the public to be diverted via the PCC. There should be a far better system of complaints handling within the publication. LORD JUSTICE LEVESON I agree with that as well but that's not quite what I was trying to drive at.
A. Please, if I haven't LORD JUSTICE LEVESON My point is that the independent member of the public simply won't know what he or she can do, what it is appropriate to accept or not accept, and so, for example, may accept that the publication of I'll give an example that's been given in the Inquiry a one inch by one inch comment on page whatever it is actually is sufficient, whereas anybody who understands what's happening and the nature of the error that's made would be saying, "Actually, I think you should be insisting on rather more than that."
A. Yes, and where that as I understand it, that is precisely the sort of advice that is given when somebody contacts the PCC, but I do know that our highly qualified staff would want there to be, alongside them, a standards and compliance arm which is learning from every case, and indeed setting standards which mean that there will be a substantial reduction in the number of complaints because the errors won't occur in the first place. LORD JUSTICE LEVESON Yes. MR JAY I just want to understand, Lord Hunt, how you see one other important issue being resolved under the new system. This is the point about prominence of corrections and apologies, paragraph 110 of your statement. Basically, you feel that there isn't a great problem with the present system and four lines down, your preference is therefore for the contract to allow for the right of the regulator to dictate prominence of any correction if and only if there's failure to agree that's between the complainant and the publisher, of course or a publication reneges on such an agreement. But why shouldn't the regulator always have power to dictates where a correction or apology or an adjudication even should go in a newspaper? Why should it be the first port of call for the parties to agree?
A. I think that, to my mind, is the sensible way forward. Demanding equal prominence in all instances is just simply too prescriptive and the emphasis is the prominence must be reasonable but it must be to the freely expressed satisfaction of the individual and/or organisation adversely affected by the original story. But a critical adjudication is a different matter. I think that's a meaningful and highly visible sanction in a competitive industry. I don't think anyone likes to have to publicise to their readers and rivals that they've been caught asleep at the wheel, and I think therefore my view is that there is a case for all critical adjudications to be flagged up on the front page or home page of the publication concerned. I think that would increase the effectiveness of the adjudications and the awareness of the new regulatory system.
Q. Your starting point always, if I may say so, Mr Hunt, is what might be acceptable to the publishers. After all, they're buying into this system. Why shouldn't it be: it's always for the regulator to decide; who cares what the publisher thinks? If the regulator publishes an adjudication, it says, "You publish this on a particular page, there's no argument about it", and if a complaint is made and something less than an adjudication arises, again, it's for the regulator to decide. Why are we giving such weight to the feelings, the view of the publisher at every stage?
A. I thought I said prominence must be reasonable and it must be to the freely expressed satisfaction of the individual and/or organisation adversely affected by the original story. That's the hallmark of the way in which complaints are handled.
Q. But it may be the hallmark of good regulation that the upshot is not to the freely expressed satisfaction of the regulated person. It may be deeply disappointing to the regulated person, but the regulated person has to do as its told. That's the advantage of a truly independent system where the regulator is at arm's length from the regulated entity and moreover can wholly dictate what the regulated entity has to do. But your system always has a tinge of what the regulated entity might want, because you're using terms like "freely expressed satisfaction". What's their satisfaction got to do with it?
A. Freely expressed satisfaction of the public?
Q. No, of the regulated
A. My words were: "Prominence must be reasonable and it must be to the freely expressed satisfaction of the individual and/or organisation adversely affected by the original story."
Q. So the publisher is not within this
A. No, it's what the individual and/or organisation wants who are adversely affected by the original story. And I realise that there is some divergence from what the industry is suggesting, particularly so far as critical adjudications are concerned. I want those to be flagged up on the front page and I think that is what the public would want.
Q. Mm.
A. So it's always a balance. I think the whole system I'm suggesting is constantly trying to balance, but it is a system that is so far untried and untested, I recognise that.
Q. I'm not sure all your ideas have been reflected in Lord Black's proposal, have they, in terms of LORD JUSTICE LEVESON I think Lord Hunt has said in terms they haven't been, but that's where we are. MR JAY Thank you. Moving forward, the issue of third-party or group complaints. Paragraph 115 and following, particularly paragraph 117. What exactly is your proposal here, Lord Hunt?
A. On third-party complaints?
Q. Yes.
A. Well, the PCC's policy on dealing with third-party complaints has evolved over time and I think the true position is often misunderstood. As I set out in the submission, our first-party rule is not substantially different from the rules on standing promulgated by all tribunals. The PCC does generally take forward complaints about matters of fact for which there is no first party or for which the information needed to reach a determination is already in the public domain. Now, in circumstances where there is an individual involved and that individual has not complained or perhaps pursuing an investigation or negotiating a remedy could be potentially intrusive to that person or impose other difficulties, complainants are now offered the opportunity to argue that there is an exceptional public interest, meaning the Commission should take forward an independent, own volition investigation. In practice, the PCC rarely chooses to proceed in such cases but I think the current position is sensible. But I think the new regulator, the new body, should clarify the policy and make an increasing effort to communicate it effectively. That's what I'm suggesting. LORD JUSTICE LEVESON I'm sure you've had the opportunity to see the evidence I've heard. I've heard from immigrant groups, from transgender groups, from other groups, and indeed I'm pressed to hear from disabled groups, but it's the same point and I recognise it very, very clearly: that they feel that there is simply no mechanism through the PCC whereby they can get redress for what are considered to be egregious distortions of fact and unbalanced stories. Of course, one has to allow for freedom of expression but there is some way between freedom of expression on the one hand, simply so expressed, and the type of complaint that you will have seen I have heard, and in respect of which there are many other submissions that I have received.
A. Yes. The notion of group complaints is a tricky one, I accept that, and there's a delicate balance we have to try and achieve because it wouldn't be in the public interest to open up the possibility of allowing the code to be systematically abused by those whose principal or sole aim is to restrict freedom of expression. But having now held many meetings with individuals and organisations from all sections, including several who have given evidence to this Inquiry I know that many people are concerned that clause 12 of the code, discrimination, relates only to individuals, but I think we've already within the PCC taken a more flexible position than many people would recognise. Of course, much of the problem can be addressed by means of clause 1, where a first party is not necessary, but I believe that when a body of evidence has mounted suggesting that any publication has been engaged in repeated or systematic vilification of any vulnerable group, the new standards arm might well have a role in publishing clear guidance. I accept that. LORD JUSTICE LEVESON Yes. MR JAY So you're really arguing for the maintenance of the status quo, save that the new standards arm may have a role if it thinks the problem is systemic; is that correct?
A. Yes, a clear pattern of complaints might reasonably be taken as possible evidence of a systemic breakdown in standards, and the regulator could regard this as a sufficiently serious issue of public interest to justify a pre-investigation by the standards arm, and the complaints arm would draw any such pattern of complaints to the attention of the standards arm where appropriate.
Q. At the end of the five years of your commercial contractual regime, Lord Hunt, what's to stop the industry en masse agreeing to new contracts which are much less stringent?
A. Well, I have already made it clear to those who are looking at the contractual terms that I never really liked the idea of five years. I want a binding contract. I'm told, however, to take a period of five years would be a sensible way forward, but I would add the word "rolling", so there is always a five-year commitment. But as I understand it at the moment, no further work is being done in developing the contracts pending the result of this Inquiry, which is a very fair position for the industry to take, but I'm just keen to get on with this.
Q. Yes, whatever you get on with, though, Lord Hunt, would have to be for a fixed-term because that's the legal advice that Lord Black has received, and it's correct advice. You can't have a contract which is indefinite or indeterminate. At the end of the fixed-term, there's nothing, is there, to stop the industry en masse getting together and agreeing a less stringent regime, is there?
A. Well, I understand the very best brains are being engaged on this and I would have thought you could have a period of notice which would have to be given by anyone or any party seeking to withdraw, and I suppose any contract can be revisited, subject to what the provisions allow, but I hadn't wanted to get into all that. I just want to get on, set up the new body. But you're quite right; we must make sure it can't be suddenly it can't be met with a brick wall one day. It has to be and I want to see a new body which gathers strength over the years and establishes a completely new and strengthened culture, which the overwhelming majority in this great I would call it profession want to see. And so, I suppose in a way I seriously commend to you the model I propose. I don't think it's perfect, I don't think any model can be perfect, but what I can do is to suggest and to assure you that this model would mark a fundamental shift in the balance of power between the regulator and the regulated, which I'm presently encouraged to believe that the newspaper and magazine industry is now willing to endorse.
Q. Of course, in five years' time, all of us will have moved away from this, won't we?
A. Well, if I'm still here in five years' time, I would hope that people will look back and see this Inquiry as having set the agenda to which the industry has responded constructively. This system can achieve whole-hearted commitment by the regulated community, and above all I believe it can restore trust in British journalism. MR JAY Well, I think on that note, Lord Hunt, those were all the questions I I'm mindful of the fact I've set myself a timetable for today and I've now hit the end of that time. LORD JUSTICE LEVESON Right. Is there anything you feel that you've not had the chance to develop that you wanted to develop, Lord Hunt?
A. No, sir, but I would hope that perhaps there could be some opportunity to share with the Inquiry the actual workings and handling of complaints as they occur today. LORD JUSTICE LEVESON I have had the benefit, as you know, of an enormous volume of material from the PCC, which admittedly hasn't included visual sight of people working, but it's certainly included the paper consequences of all they've done, so I'm very mindful of what's been happening, unless you tell me something is very different today than it was from last summer when all this evidence was submitted.
A. It's just, sir, I felt that the questions about how complaints are handled would be far better understood if it was possible to see the way in which complaints are handled at first hand rather than the documentation relating to it. It's the one thing that really has impressed me, which is why I'm determined that we will maintain the existing complaints and mediation system. It's the one thing that has impressed me about all that has been achieved so far, and I have seen victims, and the complaints, generally speaking, about the existing system are that there aren't yet sufficient powers to enable things to be done which should be done, and when I've sat down with victims with this key question of: "What can the new body do to ensure that what happened to you will never be allowed to happen again?" that has been the key question, and I think we are now poised in being able to do something about it and to restore to the regulator, which in my view is the regulator for the first time ever, the ability to strengthen public trust and confidence in British journalism. LORD JUSTICE LEVESON All right. Thank you very much indeed. We'll take a break. (11.25 am) (A short break) (11.36 pm) MR JAY Sir, the next witnesses are being called together: Ms Stanistreet and Professor Frost. LORD JUSTICE LEVESON Thank you. What tab? MR JAY Tabs 56 and 27. PROFESSOR CHRIS FROST (affirmed) MS MICHELLE STANISTREET (recalled) Questions by MR JAY MR JAY Ms Stanistreet, you've already given an affirmation or oath. You're already bound by it. Professor Frost, you haven't given evidence before. Your full name, please? PROFESSOR FROST My full name is Christopher Peter Frost.
Q. What we have from you is a witness statement dated 1 June 2012 and you've also contributed to a joint submission with Ms Stanistreet, which is undated, in fact, but I think arrived with us also in June. Insofar as there are facts set out in both statements, do you attest to their truth? PROFESSOR FROST I do. LORD JUSTICE LEVESON Professor Frost, let's just deal with one point for the sake of transparency. You were brought in to assist I think the National Union of Journalists. You weren't actually approached by the Inquiry; is that right? PROFESSOR FROST That's right. LORD JUSTICE LEVESON Is that in the last few weeks, or comparatively recently? PROFESSOR FROST I've been a long term NUJ member and campaigner LORD JUSTICE LEVESON Was it in connection with the Inquiry? PROFESSOR FROST I suppose so. Obviously I've been interested from the beginning and campaigning with the NUJ. LORD JUSTICE LEVESON The reason I raise it is because, as you probably know and is public knowledge, in fact tomorrow Liverpool John Moores University is to bestow an honour upon me and I just wanted to make it clear there had been no connection between the Inquiry and you until the National Union of Journalists sought to put you forward as a witness. PROFESSOR FROST Thank you. MR JAY What I'm going to do is go through the evidence in what I believe to be a sensible order, which means that I'll be interleaving into the joint submission points which arise only in Professor Frost's evidence. Insofar as the points arise in Professor Frost's statement, doubtless Professor Frost will wish to speak to them, but in the joint submission I'm going to leave it to your discretion how to address my questions and obviously it will make sense if we can have a balance of articulation from each of you. But Professor Frost, first of all, you are professor and head of journalism at Liverpool John Moores University. You are a member of the NUJ and you've been in journalism and education for 40 years, as you say, and you've written a significant number of books on the subject. First of all, paragraph 5 of your statement, our page 00490, where you make the point that: "Freedom of expression should be given maximum licence but this is not an absolute freedom." In what way, in your view, is the freedom not absolute? PROFESSOR FROST Clearly other people have other freedoms which may come into conflict. The obvious ones are reputation, privacy, fair trial and so on, all as mentioned in the Human Rights Act, and clearly journalists need to balance their and indeed everybody needs to balance their right to freedom of expression against those other rights. This becomes particularly important for the media, which is in a particular position of power, so that whereas the kind of freedom of expression you and I enjoy when talking to other people can have a little more licence, when it's driven by a media which is talking potentially to millions, there needs to be much more concern about the rights of others, such as privacy and so on.
Q. Thank you. In paragraphs 7 to 22 of your statement, Professor Frost, you look at the history from the 1930s, if not before, both in terms of the contributions of Royal Commissions but also in terms of what the NUJ has done in the past. The history, generally speaking, is well understood by the Inquiry, but we're grateful for your additional contribution. Really, we'd like to hear from you can you give us the highlights of what the NUJ has done in the past, insofar as you think it's relevant to our present consideration? PROFESSOR FROST I think one of the key points is in 1936 when we decide that a code of conduct for our members would be important. I mean, this is not the first code of conduct for journalists invented most other countries had them well before that but we introduced one in 1936 and it's worth mentioning that this was controversial at the time and a code produced at the time wouldn't necessarily be recognisable as a code that we have now. We were then quite concerned about growing problems, particularly around privacy, during the 30s and '40s, and were instrumental, at least, in helping the 1947 Royal Commission, which is incredibly important, to be set up, and we're very pleased, by and large, with some of the things that came out of that: suggestions for better training, suggestions for a press complaints commission of its time. It was the first time those sorts of things had been mentioned. As I say in my evidence, we were heavily involved in helping to set those up the Press Council and also training through the National Council for the Training of Journalists but we were very disappointed when we reached the end of the 1980s, or all through the 1980s, when clearly the Press Council is no longer working in the way that we felt that it should, and we left. We set up our own ethics council to try to take on that kind of work, with some success, but we also meet, at that time, a changing industrial landscape which made it much more difficult for us to be able to enforce our code of ethics on members who were struggling in the workplace, and so when we were able to rejoin the Press Council in 1989, we did that. That was during the period of Calcutt's inquiries at the time and the suggestion of a press complaints commission was jumped on by the proprietors and by editors, who set up the Press Complaints Commission, excluding the NUJ and also, notably, excluding quite a large number of the public at the time. The Press Complaints Commission, when it was first set up, was very much dominated by editors. Since then we've tried to become more involved. We've continued with the ethics council, we continue with our code of conduct and have made some changes, but we have found it much more difficult because of the changing industrial landscape.
Q. Can I ask you, please, a point on paragraph 21 of your statement, Professor Frost. You're addressing here the PCC code and you state: "The NUJ opposed the idea of putting the PCC code into journalists' contracts of employment without a conscience clause." May I understand what your position is. Would there be an objection, in your view, to the code being part of journalists' contracts if two things occurred: first of all, that there were a conscience clause and you deal with that later in the joint submission but secondly that the NUJ had some input into the creation of the code itself or the amendment of the code? Have I correctly understood your thinking? PROFESSOR FROST Yes. There's a couple of points I should make absolutely clear, and it follows some of the evidence we've heard earlier today. There is a significant difference between a code for journalists and a code for publishers, in that they are dealing with different things, and I won't talk down to you by explaining what those differences are but they are significant. What's been attempted by the PCC is to put into journalists' contracts a publishers' code. What we would say is there should be a journalists' code. Now, if we were involved with the PCC in helping to develop the code or any subsequent body in helping to develop the code of course we could make sure that there were suitable elements of that code to apply to journalists. We accept that journalists should have a code of conduct that they should be obliged to follow. We don't have a problem with that being in the contract of employment, provided there is a conscience clause which gives journalists the right to say, "That assignment is unethical and I'm not going to follow that through" without detriment to their career or their position. The difficulty is, at the moment, as we know, that if a journalist were to refuse to take an assignment, they risk at the very least detriment in their position, quite possibly also risk being dismissed, and we hear endless stories and Michelle is much better to give you the evidence on that of the way that journalists have been treated where they have attempted to follow a more ethical line and refuse assignments.
Q. So different albeit overlapping codes for publishers and for journalists. In relation to the code the journalists would be required to sign up to, it would be a contractual stipulation. Journalists would have some role in the new regulator, perhaps, in the creation of that code; is that a fair summation of the position? PROFESSOR FROST It is. We would feel that would be very important. There are a number of stakeholders in this the public, editors, proprietors and journalists quite clearly are one of those, and we think it's just incredible that journalists have been excluded from the process over the last 20 or so years, when quite clearly journalists are heavily involved in actually applying ethics day to day.
Q. Just to deal with one issue I mentioned the fact that these codes are likely to be overlapping. It's how the public interest would be assessed. Is it your view that journalists should have themselves a decision-making role as to the public interest balance or is this something which only editors should be doing? Because it might be said that the journalists won't have always the full picture. How do you see it operating in practice, particularly in the context of the conscience clause? PROFESSOR FROST It will vary, really, from assignment to assign, but quite a lot of assignments are coming from the journalists. They would be the ones who would know about the public interest. There could well be exceptions and I would expect this normally to be a discussion at some point between the journalist and their editor, and certainly if there was a story where a journalist was saying, "Hang on a moment, I'm a bit concerned about this, it appears to breach the code of practice", that there would then be a discussion between the journalist and their editor about where the public interest lies. This happens perfectly normally in broadcasting. It happens perfectly normal in the BBC, where these kind of discussions are absolutely normal, and we can't understand why that doesn't happen in newspapers. LORD JUSTICE LEVESON And it doesn't; that's your experience? PROFESSOR FROST That's certainly our experience, yes. I'm not saying there aren't some very good examples where maybe it does happen on occasion, but not nearly enough, no. LORD JUSTICE LEVESON Does it go beyond that as well? Contrary to what some people say, I understand only too well how newspaper stories are put together and how they're then subedited and headlines come in later. Should there be a discussion between the journalist and whoever is writing the headline so as to ensure that the headline accurately reflects the balance of the report or is that going too far? PROFESSOR FROST I don't think it's going too far. It's not always possible. Time pressures and LORD JUSTICE LEVESON I understand that. PROFESSOR FROST practicalities can get in the way, but certainly my experience and remember, I've worked as a reporter and a subeditor and editor for about 20 years of my 40-year career is that that's the best way to do it. It's just not always possible. But certainly if you're a little bit uncertain as an editor as to whether the headline does accurately reflect exactly what the story says, remembering that it's probably been through an editing process so may already have been changed, then it is good practice to check, yes. I've certainly been saved on one or two occasions by doing that. LORD JUSTICE LEVESON There's no question that one of the great complaints that's been made to the Inquiry has been: well, you can read the content of the article and you can just about discern that's either fact or fair comment or may be so, but then the headline screams something entirely different, and that's the complaint. PROFESSOR FROST Indeed, and the PCC's position is that the headline doesn't really need to bear any relationship to the article because it is comment, and I just find that slightly incredible. Well, very incredible. It also raises the question, which I don't think too much has been made of anywhere, about moral rights for journalists. Those were removed from us about 10 or 15 years ago. That means that our copy can be changed without us having any say about that. It means copy can be written and put under our byline if we're a staff journalist without us having any say in that at all in terms of either being able to say, "No, it shouldn't be written like that because I know that it's wrong", or that "I would prefer it was written another way". That's something we certainly would like to change. Did we mention that in our evidence? MS STANISTREET May I come in on this? Because one of the examples that I cite in our joint statement refers to complaints that journalists at Express Newspapers raised back in 2001, in 2004 and 2005, and certainly in the earlier complaints, which was about the depiction of asylum seekers. That precisely all hung about the use of the headline. Some of those stories, the actual copy that was filed by journalists was pretty run-of-the-mill straight up and down news stories, but the headlines were incredibly we felt them to be racist and inflammatory and the headlines were actually being written at that time the owner and the editor were taking a deep interest in this and were the ones who were crafting the headlines on a daily basis, and that was one of the key problems that journalists on the newspaper had, because they had absolutely no control about this process. Now, there should be a dialogue between reporters, journalists, who have written work, who are heavily involved in their work and the subbing process, but obviously it's the editor, whether it's the news editor or the overall editor of the newspaper, that has the control and the power to follow through that process right to the final stage, because quite often a journalist isn't even in the building at the time when a piece is subjected and when a headline is drafted. LORD JUSTICE LEVESON Yes, I understand that and I understand the dynamics of the pressure of time. I'm just wondering what the solution is to it. MS STANISTREET Well, I suppose it's about the genuine sharing of that responsibility and the having a process in some newspapers and some newsrooms would be a big step forward, because it's not as routine as it should be and as it is in some broadcasters, where there is a genuine discussion and a dialogue about the public interest and about the presentation of the story in its roundest possible sense. The danger of putting just simply sticking the Editors' Code into a journalist's contract is again, it's about another way of individualising the problem and holding the individual journalist to blame for something that might happen or the consequences of a mistake, whether it was deliberate or not, later down the line. PROFESSOR FROST We're not suggesting that there should be a constant dialogue about edited versions but certainly where a journalist's byline is used, that they ought to have more opportunity at least to say, "I accept that that work was done by the code." MR JAY We're going to spend most of the allotted time dealing with the future, for obvious reasons, and you'll wish to elaborate on your proposal, but insofar as we're looking at the past and the failures of the PCC, arguably it's covered in one sentence in your joint statement, but I appreciate you elaborate upon it. At 01082, page 2 of the internal numbering, the second paragraph, you say: "It's the very structure of the PCC as an industry-fostered self-regulatory body that has led to its failure." I wanted to ask you to comment either of you really on the proposals we've heard yesterday and today as articulated by Lord Black and Lord Hunt. The basic point is: what's wrong with their proposal? A substantially toughened-up version of self-regulation with commercial contracts, giving the new regulator significant powers it did not possess before and binding the participants legally within a web from which they cannot, as it were, escape. LORD JUSTICE LEVESON If anything PROFESSOR FROST Well, I would not accept that it's substantially changed, for a start. If we actually look at the way the PCC operates and the PCC is one of my research areas as an academic. I've spent a lot of time writing about it, examining in detail the way that it operates, and listening to Lord Hunt earlier today, there clearly is no significant change. It's been dressed up, we have these contracts which are supposed to enforce it, but the code is largely the same. The way that it operates is largely the same. The idea of third-party complaints and how that operates is largely the same. The remedial and mediation systems might be slightly improved, but in the end are largely the same. If we look at the way the PCC deals with complaints at the moment and there is nothing, on the face of it, wrong with it. The complaints that they receive, the numbers that they deal with, are approximately 7,000 a year at the moment. They then go on to examine those. They resolve approximately this is fairly typical 350 complaints. After some debate the kind of resolution system that Lord Hunt was talking about before approximately 40 go on to adjudication, of which approximately 50 per cent or typically 50 per cent are then upheld, and those that are upheld are quite rightly upheld. They very often are mistakes and errors which have clearly been introduced by junior staff on local newspapers and shouldn't have happened, but nevertheless they did. Lord Hunt talked specifically about jigsaw identification of victims in sexual offences and there have certainly been several of those kind of cases over the last year, and I would say almost certainly that that's something that's been introduced by a junior member of staff, perhaps one not employed very long on a local paper, who didn't come to the lecture I gave during his training course on jigsaw identification, and has missed it and the editor has missed it in the paper. A mistake. We all make mistakes. We're never going to be able to eradicate that kind of mistake. The difficult kinds of complaints that the PCC deals with are in the area of resolution, where the national newspapers are using the resolution system to their advantage, and in the complaints that never get to them in the first place because they're too big, they're too complicated and they simply don't reach the PCC. Privacy, for instance. They deal with a reasonable number of privacy complaints but if your privacy was seriously intruded by a newspaper, would you want to complain to a PCC, whose only retribution is that a story would eventually be published saying that the newspaper had had its wrist smacked? I don't think you're likely to do that. So it's not approaching the problem in the right way. The code is not structured in the right way and the type of complaints that it takes are not right. So third-party complaints, for instance. We get a lot of dealings with the very same groups that you've already talked about, those representing various vulnerable groupings, who feel that they cannot complain and the number of complaints, particularly about asylum seekers I'm trying to remember the exact period, about ten years ago, I think rose dramatically. So the number of complaints going to the PCC about discrimination shot through the roof and the PCC just rejected them all and diverted some of them to look at accuracy, which they did, and some complaints were upheld but the majority of complaints were about issues that the PCC simply doesn't look at. Discrimination. Taste and decency, which Lord Hunt again today excluded quite specifically, and whilst I have some sympathy with that view newspapers should be able to pursue much more offensive material than perhaps you can allow on broadcasting it's certainly wrong to suggest that newspapers don't take concern at offence, because they do, and the suicide clause which Lord Hunt lauded largely surrounds either privacy or offence. MS STANISTREET But the proposals that they've outlined yesterday and today effectively amount to nothing but more of the same. There is no real substantive change in what's on the table. They've ignored the opportunity to address key problems that have been highlighted not just by the NUJ but by many other campaign groups involved in press freedom and journalism, by many members of the public and groups who have come here to explain to you Chris was saying how badly they feel let down by the press and by the PCC's failure to do anything about it, and it seems to us that this is nothing more than an attempt by the vested interests the owners and editors to have a continuation of the status quo, and obviously it's in their interest that that would be the outcome of this Inquiry, but it would be a monumental waste of a golden opportunity for change and a waste of everybody's time here. PROFESSOR FROST We also see this has happened over and over and over again. If you follow the PCC through from 1989 when it was first set up, every time it reaches criticism and that's happened every three or four years or so they've done exactly the same. They've moved a little bit, changed a little bit, only a tiny bit, in the hope that the criticism will go away for long enough so they can then get on with business as usual, and that's exactly what's happening here. Looking at the contracts, which is the only significant new part of what they're suggesting, I just don't understand how that would be enforced. Are they seriously suggesting that if a newspaper decided that they would not, after considerable mediation and discussion, move to a resolution on a complaint, that the new PCC or whatever it's called would then sue? I just don't see that as credible. I'm sorry. MS STANISTREET It's also highly plausible and it happens all of the time all of the companies that would have to be voluntarily part of this commercial contract process, they breach contracts routinely, whether it's with our members or with other organisations or companies. Some rip them up. Some just simply ignore them. It wouldn't give the organisation the teeth that have been so badly absent from the PCC and the way in which it does its work. MR JAY May we look now at the attributes of the system that you are proposing. It really starts at page 01084. On the internal numbering it's page 4 of your joint statement. You identify, first of all, that the primary duty of any new body must be to ensure the freedom of the press, must be independent of state, politicians, media owners and editors. Can we just break that down first? Primary duty to ensure the freedom of the press. It is a regulator and therefore balancing that primary duty against other perhaps equally primary rights and obligations, namely the private rights of individuals; is that correct? PROFESSOR FROST That's right. There's no point in having a regulator for the press unless it sees freedom of the press as being of considerable paramount, even importance, because otherwise you become a regulator which just says, "You shouldn't invade privacy, you shouldn't do this, you shouldn't do that", and clearly there is damage there. You have to be able to justify doing those things on the basis of freedom of expression and the public interest. Therefore anybody that doesn't have that as their primary duty, I think, fails, and indeed I would say that's partly the reason why the PCC failed. It specifically refused to take that duty on board when it was first set up. LORD JUSTICE LEVESON So in fact, you're agreeing with Mr Jay, that although obviously underlying whatever we do must be freedom of expression and a free press they're not quite the same PROFESSOR FROST No, they're not, no. LORD JUSTICE LEVESON that has to be read subject to appropriate consideration I appreciate I'm using a weasel word of the rights of others? PROFESSOR FROST Yes. But I think the idea of weasel words is very important. All of this ends up being about balances, checks, weasel words and so on, because there is no right answer in any one circumstance. This is why we're all sat here, because it's so difficult. I'd certainly like to pick up on your absolutely correct point that the freedom of the press and freedom of expression are not identical, and we sometimes forget that. MR JAY Yes. The other point we fully understand "freedom from interference by the state and politician" that doesn't require expansion but "independent of media owners and editors" to be clear about that, you see within the system some role for editors and proprietors in the constitution of the system? You're not ruling them out altogether? PROFESSOR FROST No, no.
Q. And that doesn't infringe your principle of independence? PROFESSOR FROST No, no, no, we think all the major stakeholders should be involved, and that includes proprietors and editors they're the ones who run the newspapers editors who run the editorial side day to day, the public, journalists. All need to be involved. MR JAY When you say "independent" of, for example, editors, do you mean this: that editors shouldn't have a majority voice? PROFESSOR FROST Yes. MS STANISTREET We believe it's the members drawn from civil society should actually form the majority in terms of the shake holder control of that body. The journalists should be represented via their trade body, the NUJ. The editors can be, the owners can be. There's a way of balancing all of the very genuine interests that everybody has in the process but it's important that public members should form the majority so that it's not one body, the editors or the owners, who are actually controlling proceedings.
Q. Your second point: the body needs to be free for users but in terms of the funding of the body, are you ruling out some form of state subvention? PROFESSOR FROST No. I mean, that may be entirely appropriate. I don't see the costs of a body of this sort being significantly higher than the present PCC. There's no particular reason why it should be. But I certainly wouldn't rule out funding. We've not talked about it in detail.
Q. Can I ask you about the body needing to encourage good practice. You include within the scope of that having a right of reply, but what are the attributes of good practice in terms of category that you have in mind and how is the body going to achieve those objectives? PROFESSOR FROST There's a whole range of good practice, starting with sticking by the code of practice that's decided by the new body, sticking by the right of reply, but also a whole range of other practice which the body could identify, and we hope it would build up over a period guidelines on good practice there are some obviously in existence already and some generally accepted points always contacting the subject of a story to attempt to get a comment from them, for instance, would be considered as good practice so that over the period the new body would be able to say to journalists and to student journalists as well: "This is what we consider to be good practice and that can be continually developed."
Q. Are you arguing for a right of reply which is mandatory in the newspaper? PROFESSOR FROST We certainly wouldn't oppose that. We're not arguing strongly in favour of it. We feel it is something that should happen. It's part of our code of conduct that if someone seeks a right of reply on matters of significant inaccuracy, that that should be corrected. We see that as being good practice that should automatically happen, and I'm slightly astonished that it still doesn't, really. MS STANISTREET It's also the issue of due prominence when that right of reply happens, so it's not just buried somewhere at the back of the book but it equates with the weight of the original story.
Q. What would the role of the regulator be, though, in relation to the right of reply? For the right of reply to be valuable, one would want it to be exercised fairly quickly. PROFESSOR FROST Mm.
Q. Is the regulator going to have a fast-track system whereby it would, in the appropriate case, say to the publication: "You must publish the relevant viewpoint of the person attacked, or whatever, within a certain time and in a particular place in your journal or publication"? Is that how you see it working? PROFESSOR FROST I would certainly hope so. One of the advantages of a scheme like this and we go on later on to talk about an ombudsman, but I would see the complaint coming to the ombudsman initially, who would be able to say to the publication concerned: "Is there any good reason why you shouldn't publish this as a right of reply? If not, then you should do so as quickly as possible." The sooner it's published the better. I mean, ideally, the next day or the next publication date.
Q. We heard from Lord Hunt that a failing in the current system, looking at it more generally, is that editors, newspapers, don't often deal with complaints as the first port of call as a matter of course, and if only they did, that would reduce the work of the PCC or any successor regulator. I mean, is it your view that the newspaper itself should, generally speaking, be the first port of call and only if that fails, as it were, should the regulator move into focus? PROFESSOR FROST That seems to me to be the ideal, if you have a complaint a newspapers has published something about you which is in correct or breaches a code that you contact the editor directly. Ideally, on a big paper where the editor can't deal with everything, they would have a readers' editor or some sort of compliance officer who would deal with that and make sure that happens. If we look at what happens in a number of countries abroad, they have readers' editors or news ombudsmen who take calls and deal with them on a regular basis so that the complaint can be dealt with in a matter of a couple of days at most. Obviously, not all of them can be corrected then and that would then go on to the new body but hopefully it would deal with a large number of sort of fairly run-of-the-mill complaints.
Q. The next topic to deal with you've touched on this already, but we'll develop it is the issue of third-party or group complaints. There may be a slight difference between the two. A third-party complaint may be visualised as one whereby someone wishes to complain on behalf of the first-party complainant who is expressly identified in the publication but may or may not wish to complain himself or herself. A group complaint may be where there isn't in fact a first-party complainant because the complaint can only be made by the group and no one individual is identified. These may be seen as Venn diagrams with common ground between the two, perhaps, but what is your general view in terms of policy in relation to each category and what the new regulator should be doing here? You cover this in three or four pages of your statement, but in your own way could you develop that point? PROFESSOR FROST Certainly we think that the body should take complaints from anyone who wants to make a complaint. You're quite right; some of the complaints from people who are not directly involved in the story may concern stories that do involve someone else. This particularly applies to stories about the Royal Family, for instance, where people may feel very upset on behalf of one member of the Royal Family, for some reason, the story that's been written, and would feel obliged to complain. Quite clearly, the subject of the story may then say, "No, this is fair game, I'm not interested", and I certainly think the new body would need to consult with the subject of the story to find out their position on that type of complaint. The more usual complaints that we're concerned with are more of the group nature, although it doesn't have to come from the group, but a story about almost anything where there isn't it an identifiable subject of the story. It might be about a group of people asylum seekers was one I mentioned before, where there were a large number of stories a few years ago about asylum seekers, many of them quite outrageous, and it wasn't possible to make a complaint to the PCC because if there was a subject of the story, they weren't the people who were making the complaints. And those kind of complaints could come from individuals, they could come from groups, but those should be entertained by the new body to look at how they line up against the code and practice and also potentially to fit into this good practice that I was talking about so they could say, "Well, good practice in these types of stories would be And the PCC does do a little bit of that, although not as much lately as it has done in the past. LORD JUSTICE LEVESON But there aren't any black lines here, are there? Because the example that's cited in your evidence concerned somebody who died. He can't complain. Indeed, I heard from Mr and Mrs Watson about their story. Somebody who is dead can't do anything about it, yet equally one can't litigate about what happened 200 years ago. Somebody might complain that Guy Fawkes had been very badly traduced by the press and still is every year. We can't go that far, but would you agree there has to be some room for a judgment to be exercised as to whether a complaint is legitimate, even if it isn't made by the person who is affected? So your Royal Family example is clear on one side of the line. The family of somebody who died might actually be rather more difficult. PROFESSOR FROST Yes, it would be more difficult, but certainly my experience is that those kind of cases are more of a minority, and whilst that doesn't diminish their obvious importance, they would be much easier to deal with in the sense that there wouldn't be that many of them. I also think it would be incredibly useful to deal with those kind of complaints, probably through the ombudsman, who would need to contact various people who are connected with the story, in terms of providing good practice, because although it may end up that it would not be seen as being a breach of the code, it would offer guidance to journalists about the way that the new body feels that we should be dealing with those, and that's something that's missing at the moment. We don't necessarily get the guidance from the PCC, mainly because they resolve so many of the complaints it's difficult to actually understand where they see that line as being, so that it always ends up being a grey area. It's a criticism I've made of the PCC on a number of occasions that we simply don't get sufficient guidance, and I would hope the new body, probably through the ombudsman, would be able to give much more of that kind of guidance so that journalists could learn about it, so people like me could teach new journalists in our courses about the way that the industry in the UK sees those kind of things being shaped. LORD JUSTICE LEVESON Yes. That was merely an example, but it's an example of a wider problem, that the lines are sometimes rather more blurred than strict black letter rules might suggest. MS STANISTREET But that's why it should sorry, I interrupted you. LORD JUSTICE LEVESON No. MS STANISTREET That's why it's really important that it's as open access as it possibly can be, because at the moment, the reality is that so many people, whether the family members of somebody who may well have died in tragic circumstances who feel that they've been maligned and the person that they've lost has been treated really unfairly by the press, or whether they're groups of people who might be disabled and have come under attack for things that have been written about them disabled people in general or asylum seekers so many groups and individuals have been excluded from justice and a fair hearing by the PCC. So that has to change. So there are grey areas but the general principle should be to make it as inclusive and open as it possibly can be, and that's why it's hugely disappointing to sit and hear Lord Hunt today state that this isn't something that his new body is going to even consider. I think that says a lot about their way forward on this core issue that has clearly affected so many people, and so many groups and individuals have come to the Inquiry to explain in very powerful detail just how they've been affected by stories in the press, even though they haven't been necessarily named. PROFESSOR FROST If I can add, I think this is absolutely why such a new body would be crucial, because if it was black line, we could deal with it all through the law, which is very good at dealing with black line issues. It's because it's so grey, because it depends exactly on what's written in this story or that story, exactly how the people who are written about feel about it, that it needs to be a body which is able to look at this in much more detail. MR JAY Can I raise two possibly contrary positions with you both? The first is a general point. Do you accept there is a danger that the complaints process might be turned into a campaigning platform? PROFESSOR FROST That's certainly a risk and I know those who, when the PCC was set up, moved away from third-party complaints because they felt that there were one or two people who had been using it as a campaigning base. Having said that, I don't necessarily see that as being a huge problem, because if there is a campaigning base around a big issue, then maybe the body ought to take much more consideration about why that is happening and can then identify what good practice is and should be in those circumstances, lay that down so that it can then say in future: "Right, all of these complaints don't comply with our practice so we can put them away. These do and we will take those on to look at how those stack up against our good practice guidelines." LORD JUSTICE LEVESON But also there must be a mechanism to dismiss frivolous complaints if they are made. PROFESSOR FROST Of course. And a large number are. Lord Hunt mentioned about the people who write to complain that the newspaper boy doesn't deliver their newspapers properly. That happens all the time in any such body and is bound to happen here. LORD JUSTICE LEVESON Yes. That merely reflects a lack of understanding of what the body actually does. PROFESSOR FROST Mm. MR JAY The second is a related issue. It's not quite on the third-party complaint point, although again, it overlaps with it. It's paragraph 50 of Professor Frost's statement. We touched on it briefly earlier, the harm and offence issue, where you say: "At the moment, the PCC does not make complaints about issues of harm and offence unless it involves death/suicide in particular." Isn't there a danger here that if the regulator does become embroiled in issues of harm and offence, given that these may be said to be subjective, that we are moving into the area of possible censorship and so therefore the PCC or the regulator is right to draw a line in the sand at this point? PROFESSOR FROST I certainly think it's right to draw a line in the sand. The difficulty is it has drawn a line in the sand where it says, "We will not deal with harm and offence or taste and decency", and I certainly don't think we should get involved in taste and decency there's a significant difference but it's wrong to say it doesn't get involved in harm and offence. If we look at some of the complaints that the present body takes about suicide, for instance, a significant amount of that is about not reporting too much of the detail of a suicide, partly because it may spark copycat suicide but partly because it's just too offensive. I'm certainly personally of the view that most harm and offence can be dealt with. If a newspaper wants to go around offending its readers, then it should be entitled to do that providing it's not breaching the law in other ways. So it is a very difficult area and I certainly agree we don't want to go too far down the line of introducing it, but I think it's foolish to not consider it at all. The key question here is around video. At the moment, television and radio are obliged to consider harm and offence, and that applies to their Internet sites as well, which means we get the anachronistic problem of newspaper websites being allowed to put material on which would breach harm and offence, but broadcast websites publishing the same stories would not be allowed to do that. We feel there needs to be balance between those two and it may be that the new regulator would have to look at harm and offence in relation to video on websites to align it much more closely to the Broadcasting Act. Communication Act, sorry.
Q. It might be said there's something more vivid about a moving image which requires a particular form of regulation, and it could be that in terms of press regulation, although harm and offence without more may not be within the regime, if one is talking about serious harm, serious offence and this is where suicide comes in with the copycat issue if you are in the realm of very serious harm, that may be where the regulator could have a proper function, but not otherwise. Do you think that may be PROFESSOR FROST Absolutely, although if we get to the stage of serious harm and offence, usually that's covered by some appropriate law or another in any case. But you're right about video and what it shows and we don't see why it's okay to show some, I don't know, video of the latest terrorist outrage happening, perhaps, on a newspaper website but not on a TV website. If we think in this country that it is not appropriate to show film like that, it's not appropriate to show it.
Q. The attributes of the new system you break it down into three issues at the bottom of page 7 on the internal numbering of your joint statement, 01087 then onto the next page. The first general rubric is that of authority; in other words, what's the source of the jurisdiction. I think it's right to say that you favour some form of statutory underpinning which you see as different from statutory regulation. I can ask Ms Stanistreet to develop that point. What is the difference between statutory underpinning and statutory regulation? MS STANISTREET We believe that there would need to be a framework for this new council and the ombudsman process to be established that would have to be in statute, it would have to be underpinned in the same way as the Irish Press Council and ombudsman is over in Ireland that it would lay out the framework and the terms of reference for those organisations and their obligations and their responsibilities, so it wouldn't be as deeply developed as a piece of legislation in its own right but it would very clearly underpin the existence of those bodies in statute, and we also believe that it would be wrong if this was a voluntary process for publishers to be able to choose whether or not they opt into it or not. We believe that they would have to be part of that organisation and that would be the only way of achieving real change. LORD JUSTICE LEVESON That's a big step. How would you define who must be involved? MS STANISTREET Well, we think all of the major publishers in the press should be. We've talked in here about using turnover or using whether an organisation is eligible for VAT, for example, as a means of separating out the smaller organisations that make up quite a chunk of the press in terms of small magazines, small websites, small newspapers, but we think all of the major players have to be there. That we can't have it's been called the Desmond question throughout this process, where you have somebody who chooses to leave a system of regulation because it's demonstrated very clearly just the lack of power and accountability that the PCC genuinely has, and the system that the industry is proposing as a solution in terms of commercial contracts doesn't wash, and it's quite clear I'm surprised to hear that from Lord Hunt that all of those publishers have agreed to be part of a new framework. He referred to a letter that was sent to the gatekeeper's authority earlier this week in which Northern Shell, owners of Express Newspapers, expressed doubt about the press card, the use of the press card, as a mechanism to introduce ethical behaviour. Well, I have a copy of that letter, as the NUJ is also one of the key distributors of the press card, and it's not expressing doubt, the Express Newspapers; it's outright hostility. They're threatening legal action and alleging that this would constitute a serious breach of UK and EU competition law. So it's quite clear that there's not unanimity of purpose in this process and their solution for the way forward. LORD JUSTICE LEVESON But do you think that one of the reasons that there is the divergence of membership is a consequence of the way that the present PCC is set up, and that if it were set up in a way that did not, on the face of it, favour certain interests, then these problems might become less acute? If I'm being coy, I'm sure you understand precisely what I mean. MS STANISTREET But we heard yesterday from Lord Black that if we see any form of statutory involvement, whether it's underpinning or regulation, that members of the industry would up sticks and leave the country and set up elsewhere, so in terms of relying on their goodwill to be part of a new process, if it's a voluntary process, I would have doubts that they would play ball if it's not the exact model that they would wish to see as a result of this Inquiry. So making it a compulsory process seems to me the only sensible, pragmatic way forward. PROFESSOR FROST If I can add that the problem about being voluntary is inevitably you end up playing to the lowest common denominator because otherwise you're scared someone will leave, quit, and this has happened with the PCC on several occasions. So you're constantly playing down rather than fighting, as you would be able to do with a statutory system, for a sensible system of regulation, not one that is anything to do with censorship, not one that is anything to do with obliging people to do things because it would still remain largely in the control of the stakeholders but one that didn't have to play to the lowest common denominator, that could raise the standards of the lowest hopefully to match the standards if not of the highest then at least of those in the middle. LORD JUSTICE LEVESON You mention the Irish model, but I think the Irish model is not compulsory. Isn't that right? MS STANISTREET That is right. I mean, there would be some in Ireland at the moment who would see that as a potential weakness and that is something that should be considered in the future in terms of getting more people as part of that process, but I think the problems that we've experienced in the UK go far beyond anything that's happened in Ireland, and so we're trying to resolve and issue and the problems within the culture, the practices and the ethics of the press here in the UK that haven't been experienced and didn't in Ireland to in any way that degree and didn't lead to the inception of the Press Council of Ireland as it is currently. LORD JUSTICE LEVESON The other thing that people have said and I'm putting them to you for comment I've received a number of submissions, which I have sure you've seen, which talk about the very idea of statutory regulation as being fit only for other countries which operate systems which are not akin to democracy. MS STANISTREET There's been a lot of reference to Zimbabwe. LORD JUSTICE LEVESON Yes, I didn't refer to the MS STANISTREET It's farcical, really. The vested interests the elements of the press who have a lot to lose if this changes have tried to polarise the discussion, the debate and the options as if it's a choice between state control of the media and press freedom as we know it, and of course that's daft and the truth lies somewhere in the middle. And statutory underpinning of the kind that we are supporting and proposing absolutely would not jeopardise press freedom in the UK. You've made it very clear that you have no intention of doing anything akin to the jeopardy of putting press freedom in peril, and that doesn't have to be the choice before us. PROFESSOR FROST You also have to understand that if the press over the last 30 years had actually behaved in the way that they claim now that they have always wanted to and had not allowed their commercial interests to run riot with their ethics, we wouldn't be in the situation now anyway and we could have a voluntary system exactly of the sort we have. The fact is, it hasn't worked. That's why we're all here. We have to look at new solutions. LORD JUSTICE LEVESON Actually, that raises a question which I meant to ask you, relying on your interest in the way in which regulation has worked over many years. It has been said more than once to the Inquiry that actually we've never tried self-regulation and that everything that's happened in the past isn't regulation really at all; it's only been complaints-handling. If one looks at the use of the language over the years, the word "regulation" certainly does appear, but I'd be very grateful for your historical perspective upon the evidence that I've received that actually this would be the first attempt at self-regulation. PROFESSOR FROST Yes, you're quite right. We've had this remarkable change over the last few months, really, that the PCC is just a complaints body and has never been a regulator. But you're also quite right; it's always called itself a self-regulator since the day it was set up. It was set up with a view to regulating the press. The fact that it didn't do it very well and was just a complaints body is a criticism that a number of people, me included, have made since 1989. It has not changed the way the PCC has proceeded until it absolutely felt that it had failed. We gave evidence to the PCC review in 2010 detailing a lot of what's in our evidence this time, as did a number of other interested parties, and that was all rejected. The PCC was not prepared to take that on board then. Suddenly it is. Maybe we ought to give them one last chance, but they've had inordinate number of chances. I don't think they're prepared to accept it, and so reluctantly the only other place to go is some sort of statutory underpinning. LORD JUSTICE LEVESON Let me just follow that on. People have said: oh, this would be horrific, the industry would fight it tooth and nail, as indeed it may. But what's the view of your members, Ms Stanistreet? MS STANISTREET The industry would have to live with it. That would be the reality. The view of our members as you can imagine, there will be mixed views. We're a very broad church, the NUJ, and very proud of that, but it's been the policy position of the National Union of Journalists for years now that the PCC needed drastic reform, that it wasn't fit for purpose, it needed to change, and we have lobbied and campaigned and tried to engage with the PCC over a long period of time to fulfil the wishes of our members to see radical change. At the point of our delegate conference two years ago now, there was a motion debated so it was a democratic process by all of the delegates at that meeting and the overwhelming consensus was that the PCC had had its day, that it was beyond repair, that it had shown itself not to be capable of reforming and changing and that the union's policy position shifted to be one of opposing the PCC and calling for a fresh new body to replace it, and that's the policy position of the union. Our policy since then and we were caught slightly on the hop in terms of our position was for a new body, but we didn't have a blueprint of exactly what it would look like, so since the News of the World scandal and the Inquiry was established, it's been a process of going through our democratic structures to tie down our policy in more detail, which has led to the position now being that we believe statutory underpinning is absolutely vital. LORD JUSTICE LEVESON And I think somebody said recently, "Well, the NUJ is only a comparatively it's not a representative body." How many journalists are now members of the NUJ? MS STANISTREET 35,000, over. It's more of a representative body than a handful of editors and owners LORD JUSTICE LEVESON Oh, let's not get into an argument about it, Ms Stanistreet. I'm merely wanting to deal with the point so that you've said it. MS STANISTREET We are the voice for journalism and journalists in the UK and in Ireland, because we cover Ireland as well. So we have members who work in the UK and Ireland. LORD JUSTICE LEVESON Do you have any idea of how many people actually work in journalism in the UK? MS STANISTREET It's very difficult to get exact figures. We believe and of course, with new media, the industry in the broadest sense is expanding all the time and we represent members right across the industry, so in book publishing, in magazines, newspapers, in broadcasting. We believe we probably have about a 65 per cent penetration, but as I say, the statistics are very difficult to come by. LORD JUSTICE LEVESON I just wanted to get, if you like, orders of magnitude, as much as anything else. Thank you. MR JAY In terms of recruitment to the system, I think you made it clear that smaller entities you wouldn't expect to be compelled, but can we be clear of two things, really: first of all, what are the criteria for entry and secondly, why aren't smaller entities going to be brought into this system? PROFESSOR FROST There are two key elements. One is the difference between freedom of the press and freedom of expression. That raises issues around the abuse of power or potential abuse of power by newspapers. If I say something in public, people can contact me, they can argue the case. It may well be face to face of them. That is not true of a big newspaper the Daily Mail, for instance where it's much more difficult for somebody who is traduced by them to get a response. So we need to find a way of addressing that potential abuse of power. There's also a difference between me freely expressing my views, you doing the same, and then someone doing that for commercial gain, to pursue a particular viewpoint because they think it will be popular with their readers. So we need to take account of those two quite significant differences in the freedom of the press and the freedom of expression of the individual. We've tried to look at ways of saying: how can we exclude those who are writing, blogging, whatever it may be, for their own personal campaigning purposes or because they are the editor of a fanzine for a sports club or a parish magazine or a stamp collector's club or association, and those who are selling large scale newspapers to the public in general? We've suggested that there could be a number of ways of doing that: circulation, turnover, VAT registration, we've suggested. We're not particularly wedded to any particular system, but we do believe there needs to be a cut-off point where those commercial organisations of a reasonable size would automatically be covered by the new body they wouldn't have an option, they wouldn't have to join, they are just covered and those who fall below that, who may wish to join, to take on board the code, to carry some sort of kite mark, but don't have to.
Q. Yes, I understand that. Thank you. The other point I've been asked to put to you in relation to statutory underpinning you identify on page 9, second paragraph, our page 01089, what the new regulation will be doing: taking complaints, enforcing penalties, carrying out investigations, monitoring performance and also setting I'm adding this to the list standards of best or good practice. But would one need statutory underpinning for all those aspects? Is there room, at least in principle, for self-regulation and best practice in relation to some of them? PROFESSOR FROST Yes, I think so, and for most of the day-to-day dealings I suspect that would be the case. I can't see that the board would need to deal with too many but there would need to be statutory underpinning of some sort in order to be able to allow the board to say, "This is such a serious breach that we will apply a penalty, a financial penalty or fine", almost certainly, because otherwise the newspaper could just say, "Well, we're not paying it. What are you going to do about it?" I think that's really about the only point where the statutory underpinning comes in, in the application of those penalties and perhaps some identification of the structure of how that would operate. If we use the PCC and that may not be a good idea since we say it doesn't deal with sufficient complaints anyway, but if we use them as an example, because they're only adjudicating 40 complaints or so a year, of which they uphold about 20, I would envisage only two or three of those at most would be the kind of complaints that would be likely to attract penalties. But even if we said the new body because it would be more expanded, because it would be much better known by then deals with three or four times the number of complaints, we're still only talking about the handful of potential breaches that would require potential penalties.
Q. Because the threshold for the application of a penalty would be a serious breach; is that correct? PROFESSOR FROST Yes. We're suggesting that it would be a very serious breach, or where there's evidence of recklessness on behalf of the newspaper or where it's a repeated breach of the same. LORD JUSTICE LEVESON Could you distinguish between the type of topic that engaged that sort of approach? So, say, for example, privacy on the one hand or accuracy on the other, or is it just not possible to do that? PROFESSOR FROST I'm not sure that it's possible. If you were able to show that a newspaper had recklessly misrepresented the facts, then you may well want to bring a penalty. I think it's much more likely that privacy cases would be the sort where there would be a penalty, but no, it's very difficult to say without knowing exactly what type of complaints it would receive. It would receive different complaints to the PCC now, because hopefully people would be more likely to complain because there would be a reason to do so. MR JAY Can I deal with the issue of money in the context of funding. Last paragraph on your page 9, 01089. You outline a number of options. One of the options you address, the third, is to charge fees for complaints against those companies who are not prepared to treat complaints seriously in the first instance. Are you saying this: that if the publisher is not able to deal with the complaint adequately internal and the complainant is forced to go to the new regulator, it's the company who should be paying a fee to meet the complaints? Is that how you envisage it working? PROFESSOR FROST Well, it's certainly a possibility that if the new body became concerned that newspapers were wilfully ignoring complaints that had come to them first, that they could charge a fee, but I have to say it's not my favoured option. I don't think we would want to push that. It would be much more sensible for the new body to be funded either from the industry or from state funds or a mix of the two. LORD JUSTICE LEVESON Well, you have to be very careful about frivolous complaints then, haven't you? PROFESSOR FROST Indeed. LORD JUSTICE LEVESON One could say that any successfully adjudicated complaint carries with it a costs implication well. There are lots of potential models for this. MR JAY Your second option, which is a levy which could be organised by tax breaks, that would be another form of state funding, put precisely in those terms, wouldn't it? PROFESSOR FROST We just tried to raise some options. We're not particularly wedded to any of them.
Q. The second category deals with powers. We've already dealt with the issue of complaints. I'm quite interested though in the final paragraph on page 10, our page 01090: "The new body should have a role in monitoring the press' performance as well as monitoring threats to press freedom. It could also monitor trends in reporting. For example, if a newspaper is regularly responsible for stories that are anti-Islamic, the new body must have the autonomy to launch an investigation." But on what basis though would the regulator make judgments such as the one you are putting forward here? "Regularly responsible for stories that are anti-Islamic"; is that not somewhat subjective? PROFESSOR FROST It is a bit subjective, but stories from a number of papers that were anti-Islamic raised quite a furore a few years ago and it would be entirely appropriate, it seems to me, for the new body to decide to investigate what this is. It would fit very well with the good practice guidelines I was talking about where, having made some recommendations at the end, the body would say, "We feel that this would be an appropriate way forward in this area." I mean, this has happened before. The old Press Council used to do reports and did one or two extremely good ones which were very useful for the industry in guiding them to future best practice. The PCC has also occasionally, in a much more narrow way, more focused way, done something similar, which has brought good guidance, particularly in media packs and things of that sort. So we feel it's very important that the new body should be able to instigate investigations and monitor practice when it feels things are not going as well as they could be, and to issue guidance. I mean, with the phone tapping, for instance, we've heard a number of editors well, some editors say that they hadn't realised this was illegal. Maybe if the PCC had pointed that out at some point, it would have been easier for people.
Q. Arguably the problem was compounded by the Code Committee because paragraph 10 of the code specifically says that there's a public interest defence even in the case of phone hacking, which of course is not correct, but anyway I'll pass over that observation and move to the issue of sanctions. You covered the issue of fines already and in the written statement it's at page 11, 01091. You're reserving those for serious cases or cases of recklessness, et cetera, but there's also the question of placement of corrections or apologies. Your preferred system is that the regulator itself should have the ability to impose an outcome on the publisher and say exactly in what form and in what place the correction or apology should appear, but might it be said that that is a significant infringement of freedom of expression or, put slightly differently, press freedom, this degree of imposition on editorial judgment as to where these matters should go in a newspaper? PROFESSOR FROST No, I don't see that. If we're saying that the adjudication should be published and I think everyone accepts that they should be we're only really debating about whereabouts that they should be published, and depending on the seriousness of the offence, I can't see the new body saying, well, the whole of the front page of this national newspaper should become a correction, regardless of how serious the offence was, but what they might want to say is that there will be a small piece on the front page saying, "We're sorry, see page whatever it is, and there will be a much longer apology there, fairly close to the front. I think most people accept that the seriousness of the offence the newspaper has caused and where it was published in the first place both play a part in where the apology should eventually be published, and also the size of the apology and what should appear in it is also something that the new body should do. Remember, the newspapers had an opportunity to correct this in the first place without it going to the body, or should have done, if the complaint had come to the editor. And so if it's that serious, why didn't they deal with it at that stage?
Q. The other issue I'm not sure you touch on it directly is the possible payment of compensation to complainants. We heard Lord Hunt and I think Lord Black as well saying that that would be a poor idea since it would encourage legalisation of the system. Do you share that view or not? PROFESSOR FROST I don't think we've taken a specific view on this. Speaking entirely personally, I don't see there's a huge problem with it but I'm not too we haded to it because I do think there is a risk of people pursuing cases in the hope of getting some compensation. What this body should be doing is deciding whether a newspaper has behaved unethically or not, not deciding on the level of damage to the individual concerned, who may have other forms of redress. LORD JUSTICE LEVESON Do the union have a view on some sort of mechanism to resolve privacy and libel disputes short of the lottery that is litigation at the moment? PROFESSOR FROST Yes. We've certainly been involved in discussions on the potential new Libel Act and we would certainly welcome the idea that there should be a defence in the new Act that a newspaper or indeed any publisher or broadcaster who is able to show that they worked very hard on their ethics of news-gathering should have stronger Reynolds-type defences than papers who don't, but we don't want to sort of include that with this new body. LORD JUSTICE LEVESON It's quite difficult that wasn't quite my point. PROFESSOR FROST Oh, sorry. LORD JUSTICE LEVESON If I just pick up the point you've just made, one has to be very careful because if it is a voluntary body not a compulsory body, then one can't penalise somebody who says, "Actually, my ethical approach to stories is just as good as theirs, I'm not in this system for reasons A, B and C" and they may be good reasons "but actually we take just as much care and therefore I shouldn't be treated any differently than those who don't take the care." That strikes me as a reasonable standpoint. But I was really asking about whether there couldn't be some part of this system that encourages an alternative dispute resolution for privacy or libel or the sort of complaints which, to litigate about, will cost you a lot of money. If you don't have a view on it, that's absolutely fine, but I just wanted to ask whether the NUJ had formed a view on it. PROFESSOR FROST We've certainly left libel to one side. So reputation, we've said that's dealt with by the law. But privacy we would certainly hope would be covered by the new body. Of course, if it's such a gross intrusion into privacy that the person involved feels they're best going to law about it, that of course is their choice, but we would hope that the new body would deal appropriately with privacy, and one of the advantages of the kind of system we're suggesting is that an ombudsman could deal with a privacy complaint reasonably privately and pick up the issues involved from it, hopefully to the satisfaction of the complainant, without having to go through the kind of procedure now where it risks bringing it all back into the public domain again. MS STANISTREET The kind of process that you refer to, though, that kind of an adjudication, would be an attractive thing for organisations in the industry if that was part of this the regulator's process, because it could be a way of resolving these issues, you know, cheaply and speedily rather than being dragged through the courts. So it could be an attraction in some ways for media organisations to have that as part of this process. MR JAY The constitution and structure of the new body. One has to read the bottom of page 11, 01091, with Professor Frost's statement, paragraphs 41 and following. The basic structure, if I've correctly understood it, is that the new body, which you're going to call the Press Standards Commission, although the label doesn't matter, should have two sections: a board and ombudsman. When we're talking about the constitution of the board, it's that which you address at the top of page 12, where you have four categories of stakeholder, and the division between the two is that two-fifths are going to come from appropriate press organisations, whether they be employers' groups, the NUJ, Society of Editors, Association for Journalism Education, and three-fifths are going to be lay or public members; is that right? PROFESSOR FROST Yes. We think the majority should be with the public, that the industry people need to be there, because they bring a legitimate viewpoint, experience, expertise to the board, but that they shouldn't be the majority. MS STANISTREET We also think it doesn't necessarily have to be editors. What we're seeing in the PCC is the dominance of editors in that process. You don't have that same approach in Ireland, for example. The industry representatives tend to be more newsroom editors, editors lower down the chain but who are very much more in touch with what's going on in their newsrooms, and we've heard many editors come here professing ignorance about the worst excesses of behaviour in their newsrooms, and perhaps it would be better in a new body if the people who were representing the industry were people who were genuinely in touch with what was going on. LORD JUSTICE LEVESON Well, I think those who have said that they weren't present were dealing with specifically egregious reports and there certainly were a number of people who were on holiday at very important times. MS STANISTREET Blame the B team. That's been the approach. MR JAY In terms of what the new body is going to be doing we're setting aside what the ombudsman might be doing. Paragraph 44 Professor Frost's statement. It draws up the code of practice, it investigates areas of malfeasance, it deals with complaints, it campaigns for better standards, et cetera. But if we're talking about the code of practice, isn't it important, though, that the editors have a significant voice, not even a majority voice, when it comes to the code of practice for their standards, their proprietors' standards, as it were? I can see that for the contracts of employment for journalists, where there might be a different code of practice, well, then the voice of the editors should be less loud. Is there merit in that analysis? PROFESSOR FROST Well, if we're in a position where there would be two codes, one for the editors, one for the journalists, I think that's absolutely right. But if we're talking about one code that would be applied to journalists' contracts, then there need to be journalists on that committee. But I would say yes, there also need to be editors. We need to get the widest possible experience and understanding in developing codes. Everybody has to be able to sign up to that, otherwise no matter whether the organisation is statutory or not, it's going to be applying a code that people don't believe in. MR JAY There are a few topics to deal with, probably about 15 or 20 minutes' worth, but is it convenient to break now? LORD JUSTICE LEVESON I think we'll break now and carry on if that's all right with you. 2 o'clock. (1.00 pm)


Gave a statement at the hearing on 10 July 2012 (AM) ; and submitted 5 pieces of evidence
Gave statements at the hearings on 31 January 2012 (PM) 09 July 2012 (PM) and 10 July 2012 (AM) ; and submitted 6 pieces of evidence


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