Afternoon Hearing on 13 July 2012

Lara Fielden and Hugh Tomlinson QC gave statements at this hearing

Hearing Transcript

(1.40 pm) LORD JUSTICE LEVESON Yes, Mr Jay. MR JAY The first witness this afternoon is Mr Hugh Tomlinson, please. LORD JUSTICE LEVESON Divider? MR JAY 33. MR HUGH RICHARD EDWARD TOMLINSON QC (affirmed) Questions by MR JAY MR JAY Mr Tomlinson, you have given us your full name. Can we identify, please, the statement to which you are going to speak. It is a 29-page statement which was prepared on 7 June 2012. You are the drafter of it, but there have been contributions from a number of people listed on the 29th page. Insofar as there are matters of fact set out in that statement, are they true to the best of your belief?
A. They are. LORD JUSTICE LEVESON Mr Tomlinson, I think I'm right in saying that the origin of your original proposals was a request that I made to encourage all those with an interest to consider the matter and prepare some views, and I'm extremely grateful, both to you and to the group who are identified as participants in the Roundtable, for the obvious effort and energy that has been put into the report and proposal which you have put before me. I'm very aware of the amount of work it must have involved. MR JAY Mr Tomlinson, first of all about yourself. You are a distinguished barrister. You practise primarily in human rights and media-related issues; is that right?
A. That's correct.
Q. You've been Queen's Counsel for a number of years. I'm afraid I don't know exactly how many.
A. I have.
Q. In terms of the balance of your work, as between claimants and defendant, can you help us a bit about that?
A. My work is predominantly claimant-focused, although I have over the years acted for a number of defendants and for a number of newspapers. I should also add, just so that it's clear on the record, that I am counsel for the claimants in the phone hacking litigation in both phase 1 before Mr Justice Vos and in phase 2, which is continuing at the moment.
Q. Certainly. The initial proposal which you refer to in paragraph 1 of the introductory section dated February 2012 is on our system at MOD200016389, but we are going to look at this developed proposal which has undergone further consultation. In section 2 you outline it. Could you provide for us the essential features of this proposal? LORD JUSTICE LEVESON I think, so that nobody misunderstands, you have correctly identified that you're acting for the claimants in this litigation. But as I understand it, this report is not at all prepared from a partisan perspective for clients. This is part of an exercise that the group, to whom I have already referred, sat down to do, as it were, without instructions, as one would normally expect.
A. Yes, that's correct. What happened was that there was an initial meeting in the autumn of last year, and the group met and we had a discussion, and I volunteered, or was volunteered, to write it up. And then we had a number of meetings after that, and various members contributed various ideas. It certainly had no contribution. It wasn't done on behalf of any clients. LORD JUSTICE LEVESON That's the point. I think it's quite important that that be made clear.
A. Yes. MR JAY The essential ingredients of the proposal, please. You are going to develop each element of it in due course.
A. Yes. Well, the essential point was, as I know the Inquiry is very well aware, the very difficult issues of balance which have to be addressed. What we sought to do in this proposal was, on the one hand, to balance the obvious and important public interest in maintaining public interest journalism against, on the other hand, the rights of the public to have their reputations and privacy protected, and rights of the public to fair and accurate information. The way that we sought to achieve this in this proposal is by the establishment of a body which we call the "Media Standards Authority", which is to be a regulator of the media, not just the press, but anybody who publishes news in the United Kingdom. A body which is voluntary in nature, but which has a number of incentives for membership, and disincentives for those who are not members. Perhaps the central feature is that we've sought to work in a proposal which would require anybody who wished to bring a legal claim against a member of someone who was regulated by this body, would first have to go through a process of adjudication. And the thought that we had was that very large sums of money are spent by the media on defending libel and privacy claims. A lot of money could be saved if a substantial proportion of those could be the subject of early resolution through an adjudication process. As I'm sure the Inquiry is aware, you can't compel people to give up their rights of access to court. That would be contrary to the common law and contrary to Article 6. But what you can do is compel them to go through an interim process first. The view that we took was that if an independent person says to either a claimant or to a media organisation, "Your case is hopeless for these reasons", that a very high percentage of people would accept that determination and move on. We thought that's a very powerful incentive. But there are a number of other incentives and disincentives which I'm sure you will come to, but that's really at the centre of the proposal.
Q. Thank you. May we look at the ingredients of it now. At section 3, first of all, at page 00706, where you deal with the issues of independence, appointment and functions: "The key principles of the new body must be wholly independent of Government and politicians." You say at the end of paragraph 8: "Freedom of expression is best protected not by media self-regulation, which leaves out of account the interests of the public, but by independent regulation underpinned by statute." Isn't it possible, though, to devise a system of self-regulation which is independent, and therefore does take into account the interests of the public?
A. Well, by "self-regulation" I understand that ultimately, whatever the industry or the body is, it's regulating itself. And it seemed to us that actually there are two interests at play. There's the interests of the media and there's the interests of the public. And unless the regulation is independent of both, you're not going to have true and effective regulation. So I don't myself agree that an independent self-regulation, if that is a meaningful phrase at all, is the proper way to proceed.
Q. Thank you. In paragraph 9 you make it clear that the governing body of the regulator should have a substantial minority of former editors and journalist, et cetera, but working editors and journalists would be involved in the formulation of the code. What is the objection to serving editors with contemporary valid experience being part of the governing body?
A. Well, I think there's an obvious conflict of interest for working editors to be regulating their commercial rivals. And I don't myself see how someone can truly independently regulate someone that they're in commercial competition with.
Q. Your system of independent regulation has statutory underpinning and the enabling statute will cover matters such as the setting up of the body, the appointment of the relevant organs of the body and the Code Committee, as well as the provision of incentives. We see the way it might work in paragraph 11, where you've turned yourself into parliamentary counsel overnight and come up
A. A very amateur effort, I'm afraid. LORD JUSTICE LEVESON Before we pass on to the standard of drafting, just let me ask about this. You say: "Working editors and journalists will be involved in the formulation of the code." I understand why you see the value of their participation, if only that they buy in, but doesn't the same point that you make in relation to the governing body equally apply to the code? And would it not be another way of saying it to say that of course working editors and journalists should be involved, but as an advisory body to the governing body who actually are responsible for the code? I'm not insisting. I'm merely asking.
A. No, no, I understand the question. I mean, it seems to me that the essential distinction is to ensure that, first of all, you get the essential point is that you get the expertise of those who are practically involved in the media in the formulation of a code. And that those aren't the people who are making the regulatory decisions. Whether you call them an "advisory body", or whether you call them an "independent code committee" seems to me LORD JUSTICE LEVESON It's not quite a detail, because if they are the code committee and if they are responsible for the code, then they are responsible for the code, and the governing body which has the overarching independence to which you have rightly referred is not involved in identifying the appropriate standards.
A. I think the view that was taken by the Roundtable group, if I can put it that way, was that the two functions could be properly separated, and that the enabling statute would establish a code committee, which would draw up the code with heavy industry involvement. So the industry would have the buy-in to the code that is often talked about. But the code would be administered, as I say, separately by the authority. So I think it was perceived to be of value to have the two separate functions. LORD JUSTICE LEVESON It may be you could achieve the same result by saying that the governing body have to approve the code as amended.
A. Yes. LORD JUSTICE LEVESON I'm merely just analysing the proposition. I'm sorry, you can revert to your drafting discussion. MR JAY We're not in fact going to look at the fine-tuning of the drafting. We're looking at the broad principles, Mr Tomlinson. But your "news publisher" can of course be an Internet publisher in the way in which you've framed this.
A. Yes.
Q. So there is inherent flexibility within the system already. The news publisher is anyone who publishes in England and Wales, whether or not he has a place of business in England and Wales. Then we see the principal objects of the authority in subsection 4, and there we see the balance between freedom of expression and the individual
A. Yes.
Q. private interests of others. In terms of appointment to the body, you're looking at an independent body, modelled on the judicial appointments commission; is that right?
A. Well, an independent appointments process. It seemed to me that the media have a very deep-seated fear that the Government or politicians would somehow try and influence the composition of a body like this in a way that was adverse to their interests. And it was very important to have a guarantee that that wouldn't happen, that there wouldn't be political inference. How realistic that fear is, is a matter on which different views are possible. But I notice in the recent Australian system, they propose having the heads of three great universities as the independent appointment body. Perhaps going a little far. But it seems to me it's got to be a body like the judicial appointments commission, which is demonstrably and unarguably independent of political influence, and that's the important point.
Q. And independent of media interests?
A. And independent of media interests as well.
Q. Thank you. The guarantee of media freedom. I mean, one could argue about the drafting, but we're not. It is paragraph 13 of your statement. These are akin to the sort of guarantees we see in section 3 of the Constitutional Reform Act; is that the idea?
A. Yes, it was modelled on that.
Q. Can I ask you, please, what obligations LORD JUSTICE LEVESON Did you come to that independently, or is that because I raised it? I'm not seeking credit.
A. I came to it it was independent. LORD JUSTICE LEVESON I'm very pleased. Good. MR JAY What obligations are on the Secretary of State in practice though? We see in subsection 1: he must uphold the freedom of the press and its independence from the executive. But what does that mean?
A. It's partly intended as a statement of, as it were, quasi-constitutional principle. Like the independence of the judiciary is a fundamental constitutional principle, so the independence of the media should be as well. What that means in practice is that if the Secretary of State of is making decisions which will impact on the way the media operates, the Secretary of State must be guided by this principle. And there are circumstances in which one could envisage situations where that would force the Secretary of State to go in one direction rather than another.
Q. So in terms of executive decision-making, it could have an impact, and one perhaps beyond, is this correct, Article 10 of the ECHR and analogous principles of common law, otherwise there wouldn't be any need for it?
A. Yes, it's interesting that Article 10 is often not remarked, but Article 10 actually makes no reference to the media, save there's a provision in 10.1 about the regulation of broadcasting and so on. The common law doesn't either. The common law understanding of Article 10 are really about freedom of expression, and media freedom comes as an essential component of that. This is intended really to put in the clearest terms media independence. It's all part of the balance, the quid pro quo, that the media is afraid of statutory regulation. And I think what we were trying to say here is you needn't be afraid of statutory regulation, and here is a statute which actually will, for the first time, set out the fundamental importance of media independence.
Q. In subsection 3: "The interference with the activities of the media shall be lawful." And then there's the standard qualifications. But to whom is this addressed? Is this addressed to the courts or is it addressed again to the executive?
A. Well, it would be an obligation placed in public law. So it would be on public authorities which would include the courts.
Q. The functions of the authority you enumerate in paragraph 14. LORD JUSTICE LEVESON But you are not in subparagraph 3 intending in any sense to inhibit the proper use of the criminal law?
A. No. It's not intended to. We did have a long discussion about the position of the criminal law. And I think the view we all took was that the issues are complex and are not really best dealt with in the context of this kind of exercise. MR JAY Functions now. The authority establishes a code committee, a system of regulation, sets out rules for participation, establishes dispute resolution tribunals, et cetera. Have I correctly understood it, it's not an express function of the MSA to monitor or enforce the code?
A. Well, that may be just another failing of the drafting. It's one of the intentions that that's exactly what it will do.
Q. I understand. So that's a small drafting point which might be addressed?
A. Yes.
Q. Okay. You are contemplating in paragraph 15 a contractual system of course there's statutory underpinning for the bodies, but participation is going to be created in practice by individual contracts drawn up by the MSA with the individual regulated entities?
A. Yes.
Q. Have I correctly understood?
A. Yes.
Q. What are the advantages of having such a contract?
A. Well, I think it gives flexibility in the sense that the body is established by statute. The body consults and decides exactly the precise details of its functions are not laid down in the statute. And they're not laid down by the executive. They're something that's decided on independently by the members of the authority. So a statutory framework gives greater flexibility. Although we do say in paragraph 15 that it may be that the statute could refer to the contracts and make it clear that there's some I think they were debated earlier in the week in this Inquiry some subtle issues of contract law that may arise in the context of such a contract. The position could be made clear by the statute.
Q. The powers of enforcement, or rather investigation calling for documents, et cetera, those only arise under the contract. They don't arise in the statute?
A. Yes.
Q. What would be the objection to encapsulating these powers within the statute, so one wouldn't need to have to go to court and get an order for specific enforcement?
A. Well, I don't think you could avoid having to go to court to get an order whether the powers were in the statute or in a contract, because if someone refuses to co-operate, you are going to have to compel them to. But the purpose of having them in the contract rather than in the statute is, as I say, flexibility and balance to it's not a system that's imposed, as it were, from the outside by the statute. It's a system that the members agree to and sign up to.
Q. Under paragraph 15 you see: "Participants would be required to give the MSA investigative powers." So that requirement would have to come from somewhere. So you would need to look to the statute, wouldn't you, which places that on the participant, or is it entirely a voluntary matter?
A. Well, no. The MSA would say how you spell this out in the statute is a matter of fine detail, but the MSA, it's contemplated, would say, "Well, in order to perform our functions which are set out in the statute, we need powers of investigation. So the contract of membership must include an agreement to submit yourself to investigation if required."
Q. Dispute resolution is obviously a key aspect of this system. You explain it in two places in the document. First of all, in paragraphs 16 to 25, and then subsequently. If we look at the diagram, at page 9, our page 00710. Can I just invite you to talk us through this: differentiating between the pure breach of code case on the one hand, and the complaint of a legal wrong case, which may or may not involve as well a breach of the code on the other. Perhaps we can do it in the order we see it here. Complaint of a legal wrong. How is this going to work?
A. Well, if someone read something in the newspaper and said, "That defames me. I have an action for defamation," what is contemplated, first of all, they would go to the MSA and say, "I have a complaint about your member. I'm defamed by this," and the MSA would try and mediate that complaint. If that failed, then they would be required to put the complaint to an adjudication, which would be a quick, relatively informal system, with a legally qualified adjudicator, who would then say, "Yes, this is defamatory," or, "No, it isn't defamatory," or, "It's defamatory, but it's comment," or, "It's defamatory but it looks to be true," and make a determination. At that stage the complainant could have a choice. They could either accept the adjudication, or they could decide that they didn't like it, and they were going to go to court. But the crucial thing is that they would be required first to go through the adjudication system, which, as I said earlier, one would hope would save very considerable legal costs.
Q. There's another possibility. Instead of going towards the right complainant not satisfied, court proceedings he can go towards the left, which applies to either party, and go off to dispute resolution tribunal, which is a form of statutory tribunal. Have I correctly understood?
A. No, what we had in mind there is effectively an arbitration function. I notice quite often when this is discussed, people get confused about the not the Inquiry, but the media, and laypeople get confused about the distinctions. Arbitration is of course always possible. Anybody can arbitrate now, because all you have to do is sign an arbitration agreement and appoint an arbitrator. So disputes between the media and individuals could always be arbitrated. But of course, you can't force people to arbitrate. It requires the agreement of both sides. So the idea is that the MSA would provide an arbitration function in effect through the dispute resolution tribunal, but that would have to be consensual. Sorry, and the second part, as it were, is if it's a complaint of a code breach let's say inaccuracy. Some form of inaccuracy or unfairness, which is not actionable in civil law, or only in part then the idea would be, again, make a complaint, mediation. And then, if the complainant isn't satisfied with the result, or it can't be resolved, then to have the tribunal resolve that complaint. The third level is, it seems to me, vital that the MSA must be able to initiate complaints itself. If the MSA perceives that some newspaper or other publisher is behaving in a way that's unfair, inaccurate, in breach of the code, to bring a complaint itself, and the third process is designed to resolve that.
Q. In relation to the hybrid complaint, which involves both an allegation of a violation of legal wrong and of breach of code, how does it work, Mr Tomlinson? Does it in fact fall within the second category?
A. Well, the position would be that the complainant perhaps the complainant doesn't formulate it very often, doesn't formulate it whether it's a cause of action or a breach of the code. They bring it to the attention of the MSA, and the MSA says, "Well, you are complaining about both a legal wrong and a breach of the code. We'll deal with it by way of mediation." Ultimately, the two would have to be separated because only legal complaints can go to the court.
Q. Indeed, unless both parties were agreeable to the hybrid complaint being dealt with by the dispute resolution tribunal.
A. Yes.
Q. In which case it would be arbitration, as could happen now.
A. Yes.
Q. In this system I suppose this much must be obvious if you have a voluntary system, where some newspapers are participating and some are not, the complainant would, in one case of a participating journal, be able to pursue this route. But in the other case of a nonparticipating journal, it would only be able to pursue the legal route?
A. Yes, that's correct.
Q. And obviously he would have no rights whatsoever if the newspaper did not sign up to the code
A. Well
Q. and it wasn't a legal wrong?
A. Yes, they simply have the rights that they have under the general law in any event.
Q. Thank you. If we look now at section 4 and the Code, which is page 1100712. You have explained that you see no difficulty with there being working editors on the Code, as well as journalists and independent figures. Would you expect there to be a majority of working editors, or would you expect their voice, numerically at least, to be counterbalanced by a majority of journalists and lay members?
A. I wouldn't expect there to be a majority of working editors, no.
Q. So that you see as being the best balance between complete independence on the one hand and the expertise and living knowledge which working editors could bring on the other hand. Have I correctly understood it?
A. Yes, and also what you might call "buy-in". You've got to have, it seems to me, balance on the one hand. You have got to have a code which makes sense to the editors and which they feel is operable. On the other hand, you can't give them a veto over its contents.
Q. The public interest defence, this applies to civil proceedings, save for proceedings for defamation. Could I ask you, please, to explain two matters. First of all, defamation is not included, because there are separate defences of course to defamation claims, which are not related to the public interest, save in the limited context of qualified privilege and the Reynolds defence?
A. Yes. It's thought, as a matter of public policy, that the mere fact that something is in the public interest, if it's defamatory, is not sufficient to provide a defence. Something more is needed. And that something more was developed by the House of Lords in Reynolds and in subsequent cases. So you need, put simply, responsible journalism added to public interest.
Q. The second point is that this public interest definition could be used within the code itself for determining whether or not there's a breach of the code in appropriate cases.
A. Yes. The idea was that this serves two functions. First of all, as a general public interest defence in civil proceedings, and secondly as guidance for the contents of the code. The code could be more elaborate, depending on what the Code Committee wanted to do. But the idea is that this defence could be used in, for example, breach of confidence proceedings, misuse of private information proceedings or other proceedings in the courts.
Q. This is the most developed public interest defence which the Inquiry has seen to date. Just one or two points, if I can raise them, about it. Unlike paragraph 10 of the existing PCC code, there is no stated public interest in freedom of expression itself. Is there a reason for that exclusion?
A. Well, I'm afraid I think that the suggestion that there's public interest in freedom of expression itself is incoherent. The idea that a person who subjects another to racial abuse, they're exercising freedom of expression, but there's plainly no public interest in that. The public interest must only I mean, a blackmailer is exercising freedom of expression, but there's no public interest in that. Freedom of expression is in the public interest in some circumstances, but not in all circumstances.
Q. I think in my opening submission I described that as argument which pulled itself up by its own bootstraps. But you have a more elegant way of explaining the flaw in it. I'm also interested in subparagraph (f) on the next page. This is an area which vexes all of us really. But your definition is interesting: "Exposing misleading public claims made by individuals or organisations." Might there still be debate there as to what is a claim? Could there be a misleading implied claim, for example? In other words, to go back to my footballer who claims to be happily married, almost implicitly and/or makes money out of that cachet, then does something which is inconsistent with that, are you intending to cover that sort of case, or are you intending to narrow the
A. No, the intention is to narrow it. It seems to me that once you get into the land of misleading implied claims, then that opens up a can of worms. It means that it can be really open season on anybody, because you can say, "Well, look, by implication, by walking down the street with your wife, you are implying that you're a faithful person, and therefore your sex life can be exposed by the newspapers if it's not entirely in accordance with the expectations of the editor".
Q. In line with LORD JUSTICE LEVESON Would it cover the attempt to protect the commercial saleability of famous people? In other words, their image rights, that is often used as the explanation why some people pursue actions as opposed to others?
A. Well, I am, from my own professional experience, very sceptical as to the whole area. It's actually almost unheard of for people to have image contracts that depend on a particular sort of image, and actually it's usually more valuable to appear to be bad than to appear to be good. So but LORD JUSTICE LEVESON That shouldn't be taken as an encouragement.
A. But the idea of this is to focus on if people say publicly, "I am a happily married man, this is why you should vote for me in this constituency", that's a misleading claim, and there's a public interest in exposing that. I myself and I'm not sure this is the collective view of my colleagues I myself would be very unhappy about spreading the exposure of misleading claims any wider than explicit express claims. MR JAY In line with recent Strasbourg jurisprudence, might you have to differentiate between types of individual, those who choose public life either because they're politicians or something similar, and those who are, if I can put it this way, merely celebrities?
A. Well, I mean, there's two ways of coming at it. People who live their lives in the public realm have a different expectation of privacy to those who don't. And then the people who live their lives in the public realm take on responsibilities of various sorts, depending on what kind of public role they perform. The Strasbourg jurisprudence, is, I think, relatively clear. If you're a public political figure, then your expectations are very different from if you're someone who is a mere celebrity, if I can put it that way. Could I just draw attention I don't know if you are going to move on from this. Were you moving on from this? LORD JUSTICE LEVESON Draw attention to what you want to draw attention to.
A. The particular innovation is subclause 2. MR JAY Yes.
A. Which is: must have been authorised and approved by the media in accordance with appropriate internal procedures." The idea of that was to encourage the media, before publishing a story, to have a procedure as indeed the broadcast media do, as you're probably aware for assessing whether it's in the public interest or not. So somebody sits down and considers the issues of proportionality, the nature of the public interest and so on, in accordance with an established procedure, rather than an ex post facto justification, publishing the article without thinking about it, and then afterwards trying to say it's the public interest. The idea here was to make it an element of the public interest defence that there be proper procedures in place. We go on to say that this is intended to apply generally to all the media, not just to participants. But obviously, if the participant has followed the provisions of the code, then those will be appropriate internal procedures. It's not intended to be exclusive, but there may be other ways of doing it. As, for example, one has with the broadcast media. It seemed to us to be an important feature which doesn't, at the moment, find its way into the PCC code. LORD JUSTICE LEVESON This deals with one of the concerns we heard earlier in the Inquiry, about decisions being made which were essentially unchecked, unvalidated, unaudited by somebody in some appropriate means, and that deals with this
A. Yes. And that seems to us to be an important feature. And if you're saying, "I'm acting in the public interest," then one aspect of that is you've got to demonstrably think it through, and justify, before you do it, why it is in the public interest to yourself. LORD JUSTICE LEVESON There's no reason why this should be particularly onerous, because it won't apply to every single story, or indeed anything like every single story.
A. No. LORD JUSTICE LEVESON It's only relevant to those stories where you're obviously impacting upon the individual rights of others.
A. Yes. One sees it. I have some experience of cases, both for broadcasters and against broadcasters. And of course broadcasters are effectively governed by codes which require them to do this anyway. One sees in the case of broadcasters that they do go through those processes and do go through stages of thinking it through before they come to the stage of publication. MR JAY Procedural provisions now. LORD JUSTICE LEVESON Just one moment. (Pause) You deal with pre-notification in paragraph 30. But we're going to come back to it at 49 to 51. So maybe we can deal with it then. MR JAY In my understanding, prior notification is going to be part of the appropriate internal procedures, is it?
A. Yes. Yes, and prior notification is obviously a vital element in protecting privacy interests. Without it the person whose interests is interfered with are left with really a remedy which is of very little value. And of course, prior notification is absolutely the norm in terms of the broadcast media.
Q. Your procedural sections, these will deal with matters such as internal investigation and systems which participants should have in place for ensuring compliance with the code. It's largely self-explanatory, but can I ask you what the role of the regulator is to ensure that systems of internal governance, as it were, are properly in place and functioning?
A. Well, the participant would obviously have to satisfy the regulator that they had such systems in place, and if they didn't, then the regulator would take appropriate steps to ensure that they did.
Q. Thank you. Dealing with alleged breaches of the MSA code now, paragraphs 33, you would need, presumably, an express provision in the statute which would make it clear that complaints can be made by groups rather than persons necessarily individually impacted by a breach.
A. Well, I'm not myself sure you need it in the statute. You need it in the governing instrument in the contract. But I don't think it's who can complain is essentially a mechanism question which depends on the contract. I'm sure it's clear, but the question as to whether non-victims can complain is one that's been around since the Second World War. It did seem to us that it's a very important feature to be clear about, because it goes to the question of whether the press are serving the public interest. But one thing that we thought was inappropriate is that there should be any question of compensation in such cases. Compensation for victims, yes. Compensation for non-victims, no.
Q. In what circumstances in a victim case would the MSA be expected to order compensation?
A. Well, take a not atypical case, where a newspaper writes about, let's say, a dead family member in a way which is extremely upsetting to the family, but is not actionable in law because the person who is being written about is dead, or there's no cause of action. In those circumstances it seems to me a newspaper that wrote something very unpleasant and intrusive about a dead family member ought to be expected to pay compensation. What we've said here is the compensation levels wouldn't have to be in accordance with the way that the courts do defamation damages. They could be much more modest. Particularly as the code violations would be linked in to what are sometimes called "real remedies". In other words, publications of corrections and apologies. But it does seem to me inappropriate. There are cases in which compensation is right, is the right thing to do. LORD JUSTICE LEVESON How do you cope with the argument which has been deployed in the Inquiry, that as soon as you introduce the remedy of money, then you will discourage attempts to resolve complaints, to mediate complaints directly, on the basis that they're going to lead to requests for money, and also bring lawyers into a process which is better served by being swift, inquisitorial in its manifestation and provide the immediate remedy of rectification, rather than create a damages culture.
A. Well, I think there are two points. First of all, I wouldn't envisage costs being awarded, and I wouldn't envisage large sums, very substantial sums being paid. So the idea that people are going to be employing teams of lawyers to claim these sums seems to me to be unrealistic. LORD JUSTICE LEVESON Or equally, teams of lawyers to prevent. I mean, they wouldn't be teams. They would be in-house lawyers, who are doing this against presumably litigants in person in those circumstances.
A. Yes. But the position is I am not aware of any research which suggests that in other areas where compensation is available, it inhibits the mediation process. I mean, someone comes along and they say, "You have made an unfair statement in your newspaper. It's inaccurate. It's been very distressing to me," and the MSA in its mediation process says eventually, "Well, look, the newspaper will publish an apology, and they'll pay you GBP200 in the recognition of your distress". As might happen if you have complained against a bank for mistreating your account in some way, which caused you distress. Such systems happen throughout the commercial world, and I don't see any reason why they shouldn't operate effectively in the context of the media as well. MR JAY Section 5 now, Mr Tomlinson. LORD JUSTICE LEVESON If you're moving on from these people, there is a distinction, isn't there, between the example you gave of a deceased family member and a complaint being made by someone about the way in which a third person has been treated, who is able to pursue a complaint if he or she wishes, but who chooses not to?
A. Yes. LORD JUSTICE LEVESON In those circumstances, what would you say about that attempt?
A. Well, I would say that there's no compensation a non-victim complaint would necessarily not attract LORD JUSTICE LEVESON But should that be taken on board, where the victim
A. Yes. I think even if there is a victim, if the victim chooses not to complain, the MSA should still consider it. Either it's a breach of the code, or it's not. And people often don't complain for all kinds of reasons. Not just because LORD JUSTICE LEVESON It may be because they feel, "Well, it's rather more than was necessary, but by bringing attention to it, I'm only going to aggravate the problem dramatically".
A. Yes, yes. LORD JUSTICE LEVESON Why should they be the subject of having that aggravation when they don't wish it? Because some other person feels that there is a breach of the code? I'm only testing it.
A. One can think of all kinds of practical examples, where there's been coverage of particular incidents which the individuals involved want to put behind them. But if that shows that there's systematic, or not even systematic, failure by a newspaper to behave in a proper way, it seems to me it's important that that's brought to the regulator's attention and dealt with. MR JAY Section 5, "Promoting ethical and responsible conduct". Page 00715, page 14. This is largely going to be achieved by making appropriate provision in the code of conduct itself. But by what process are these principles going to be embedded in the code? Is there going to be enabling legislation which permits it or requires it? In other words, how are we going to know that these very sensible principles are going to ever see the light of day?
A. Well, what is envisaged is that there be general guidance in the legislation, and then it's up to the Code Committee to decide exactly how they are embodied in the code.
Q. The Code Committee may take a rather different view then of the necessity for all or any of these requirements, because they're not self-evident.
A. Well, again, I keep using the word, but there's a balance to be struck between on the one hand providing statutory guidance, and on the other hand letting those responsible make the decisions as to the detail. I certainly wouldn't envisage the statute laying down in great detail what the provisions of the code should be. They seem to me to be inimical to the whole model.
Q. Are you envisaging a separate code for journalists or are they going to be subject to the same code as the MSA code?
A. The same code.
Q. Do you see any merit in the point made by the NUJ, who we heard evidence from on Tuesday, that although they are overlapping Venn diagrams, there may be differences in the obligations journalists should be subject to compared with those editors should be subject to?
A. Well, I think that in the drafting of the code, that would need to be made clear. I mean, certain obligations obviously can't be obligations that fall to journalists. But it seems to me that there are a number of fundamental principles which must apply across the board.
Q. Thank you. Pre-publication steps. This is a point that we are going to pick up. It's paragraphs 49 to 51. This deals with the appropriate internal procedures which are in the Act. What you are contemplating here is that the MSA is going to provide a form of advisory service in addition to its other obligations. Have I correctly understood that?
A. Yes. It's been mentioned on a number of occasions. I think indeed in evidence to this Inquiry. There may be occasions in practice I haven't come across them myself, but one can certainly envisage them theoretically situations where a publisher may be in doubt as to where the public interest balance lies in a case of difficulty, and what's envisaged in that circumstance, the MSA could provide advice.
Q. But if the court were going to take that into account in relation to a privacy claim, in other words the fact that advice was given, and either accepted or rejected, would one need enabling legislation for that to take place?
A. Well, what's envisaged later on is that that be written into a public interest defence. So yes, is the short answer.
Q. Can I put this to you. Is there not an objection in principle to a regulator giving free advice or assistance to the public and to publishers, particularly if there's an element, as there might be here, of state funding?
A. No, I don't think there's any objection in principle. Indeed, I think it's essential that a regulator is able to guide the regulated entities as to the direction they ought to be going in.
Q. Thank you. In terms of funding, most of it is going to come from the participants themselves. You don't rule out the possibility of state funding, particularly to cover start-up and transition costs. But that wouldn't be vastly expensive. Can I ask you, though, about paragraph 53, and the application of the polluter pays principle, where you say: "Participants who breach the code will be required to pay enhanced annual subscription." Effectively, that's fining them in another way, isn't it?
A. Well, fining is a slightly emotive issue, it seems to me, and I think we make clear somewhere that fining would be a matter of last resort. But it may be that if someone breaches the code in a particularly outrageous way, the appropriate way to deal with them is a fine, as one sees in other areas. On the other hand, if there are a succession of minor breaches, where a particular publisher and there are notorious examples in relation to the PCC, where particular publishers are constantly being found to be in breach of the code in minor respects, and don't do anything about it. Then in those circumstances, where we're not talking about fining them for the particular breaches but because of their continuing conduct, then an enhanced subscription. That was the idea.
Q. The ability to levy the enhanced subscription, that could be built into the contract?
A. Yes.
Q. Can I ask you now about the handling fee, which you say complainants and respondents could be charged in appropriate cases. Is it being contemplated that the general rule would be that access to your system would be free of charge to the claimant, or is it that the respondent will usually pay? In which circumstances will a handling fee be payable?
A. It's contemplated in general it will be free of charge to the claimant. However, there's always the concern about frivolous claims, and a small fee may be an appropriate way of deterring I say "a small fee". GBP50, or whatever it is, may be an appropriate way of deterring frivolous complaints.
Q. In what circumstances, turning the other way round, would a respondent be paying the handling fee? When its behaviour was particularly egregious? How would you see it?
A. Yes, I think if the position was that there was a clear code violation and the participant had no credible explanation, then they would be required to pay the costs of the process.
Q. Section 7, voluntary participation. You come to the conclusion that no one would or should be compelled to join. You advance three fundamental reasons for proposing such a voluntary system. The first is problems of principle in credibility. Can I ask you, please, to develop the Article 10.2 ECHR point? Why, if this system were deemed to be in the public interest, particularly if other systems had been considered by this Inquiry and rejected on the grounds that they did not fulfil the public interest, would a compulsory system not survive Article 10.2 of the Convention?
A. It's interesting that the Convention contemplates in Article 10.1 the licensing and regulation of broadcast media, but not of the print media. I do not myself think that regulation of the print media of itself is incompatible with Article 10. The question must always be proportionality. Just take as an example at one end of the scale I'm not suggesting for a moment this is what the Inquiry has in mind but if it were said nobody can publish news in the United Kingdom unless they have a news publishing licence, it would seem to me that that would probably be something you could not justify under Article 10.2. On the other hand, if there was a system that said, "If your sales of a newspaper are more than 50,000 per issue" or whatever the figure is "if so, you must subscribe to this system of regulation," I think that probably would be justified. Anything in between, then I think there are potential arguments. The closer you get to licensing, the more difficult it will become.
Q. The case you referred to is a case in the Inter-American Court of Human Rights. Are they applying there the principles enshrined in the first amendment to the US convention, or are they applying LORD JUSTICE LEVESON Probably a constitution, Mr Jay. MR JAY Sorry, the US Constitution. Are they applying some different
A. No, they're applying a provision which, in material terms, is identical to Article 10. It is the Inter-American Convention on Human Rights. And what they said was that the system which was then prevalent in Latin America, that you could not practise as a journalist unless you were a member of the College of Journalists, effectively a licensing system for journalists, was a breach of effectively Article 10.
Q. Who is responsible for the licensing in that case? Was it the state?
A. From memory, there were professional bodies, like the Law Society, or there were "collegios" or something, and they were self-regulating bodies of the profession, but you had to be a member to practise.
Q. You refer to compulsory regulation as being backed by compulsory registration. Would it make any difference if there were a system of general authorisation which you would, as it were, trigger if you carried out certain activities? In other words, it wouldn't be expressly licensing or registration. It would be indirect.
A. Well, I think myself it's a distinction without a difference. If you have a rule which applies to all news publishers, defined in some way, if you are a news publisher, you're subject to those rules, and if you don't obey those rules, you are sanctioned for not obeying them. Whether you have to have an explicit licence is in a sense a matter of form, rather than substance.
Q. So you're putting down a marker really in the form of a warning: beware of Article 10 of the Convention. But I dare say, you're not prepared to quantify how high the risk is in terms of a breach of Article 10 if there were a compulsory system. The devil would be in the detail?
A. Exactly right. It's a marker. It's clearly possible to envisage systems of compulsory regulation which are compatible with Article 10.
Q. Your second point in relation to compulsory regulation is more a practical one, that you think people go offshore in effect, to avoid it. But in real terms, is that a risk? Do you see the large publishing houses here, whether it's Associated News International, Trinity Mirror, whoever, going off to Calais, or wherever?
A. It's not unknown for the owners of large media corporations to go offshore to avoid paying tax. It seems to me that if you have a tough regime, which is tough enough so that the media don't like it, and it's compulsory, they're going to take steps to try and avoid its application to them. And I think one of the, it seems to me, absolutely fundamental questions is now we refer here to the fact that the big Internet companies, Google, Twitter, and so on, don't have a commercial base in the UK. And it would be very easy for someone who is commercially publishing on the Internet to have nowhere in the UK where they can be regulated. And it seems to me increasingly, as everyone says, news publication is moving online, and it will become increasingly difficult to regulate on a national basis, if it's compulsory. LORD JUSTICE LEVESON It's all a question of balance, isn't it? If you make it tougher and tougher and tougher, then people will look for more and more ways to avoid it.
A. Yes. LORD JUSTICE LEVESON The trick is not to be governed by the threat; to try and get the balance right.
A. Yes. Well, I'm sure that that's right. Obviously there's an alternative model, which involves balanced compulsory regulation. Of course, one can raise practical issues, and doubtless you will in a minute, but the idea of this is for it to be sufficiently attractive to attract people in. So it becomes a positive as well as a negative. So that people actually want to join up because it gives them positive advantages.
Q. But part of being sufficiently attractive may be that the system is not robust enough, because the more robust it is on one level, the less attractive it is, and other things being equal, the less inclined newspaper publishers may be voluntarily to participate.
A. Well, there's a subtle balance of sticks and carrots. I'm sure you are going to come on to it, but one part of the proposal was to have a few big sticks towards the end, which newspaper publishers might wish to avoid.
Q. The other aspect of this and we're still on the theme of compulsory participation this is paragraph 63 of your statement where you address the Desmond problem, which after all is a somewhat fundamental problem. You think there will, in any event, be a two-tier system of news publication: "A small and diminishing number of large regulated newspaper and magazine publishers and a large and increasing number of unregulated publishers." The latter, of course, all being Internet publishers are out of the jurisdiction anyway. Is that your point?
A. Well, or I mean, I'm not an EU lawyer, so I'm not purporting to give an opinion on the subject, but it does seem to me that if you were printing your newspaper in France or Ireland or another EU country, there would be considerable difficulties in preventing someone doing that from importing it into the United Kingdom. So in other words, if your business centre was in another EU country, you wouldn't be regulated by a compulsory English domestic system.
Q. Positive benefits of consent, paragraph 64. You think that a voluntary system itself has substantial positive benefits. In particular, a voluntary system would have to be designed to obtain the fullest co-operation of the media. But that may be at the price, might it not, of having too lenient a system?
A. It might. Obviously we've discussed this with newspapers and some newspapers are absolutely adamantly opposed to any kind of statutory underpinning, and their current official public position is that they will not join in if there's a statutory underpinning. But some newspapers are in general happy, and favourably disposed towards this kind of idea.
Q. Can you tell us those who are favourably disposed?
A. Without giving away any confidences, I think it's already been said in evidence to the Inquiry that I think Lord Black made the point that there were favourable editorials about statutory regulation in the Financial Times and the Guardian and the Independent. Those kind of newspapers are obviously not averse to this kind of system. LORD JUSTICE LEVESON Underpinning rather than regulation.
A. Yes. But a system of incentives, as I'm sure the Inquiry well knows, as Lionel Barber, the editor of the Financial Times, before this process began, made a speech making suggestions on those lines. And you see that there are people from the Financial Times and the Guardian in a personal capacity as members of the Roundtable. MR JAY I'm not going to ask you to develop the point on partial registration, but the point on a compulsory system of media tribunals, which you reject, what in essence is the issue there?
A. Well, the issue is that if you had a media tribunal which was like an Employment Tribunal, which effectively just decided on causes of action against newspapers, you would have all the advantages and disadvantages of a tribunal system. In other words, you would have potential inequality of arms issues. You would have, as with the Employment Tribunal, a very large number of cases, a lot of litigants in person, and it is bound to be quite costly. The other side of it is that, it seems to me, one of the big issues in relation to media regulation is not the individual complaints at all. It's systemic failings. If you are going to deal with systemic failings through a system of media tribunals, you have to have a media law which enables you to bring action in relation to systemic failings in a tribunal, which itself is not straightforward. I'm not saying it's not possible. I mean, I think the Calcutt recommendation was along those lines. LORD JUSTICE LEVESON Would it assist if the system was inquisitorial, so that effectively one arranged for an arbitrator or mediator, whichever route you're going down, to have sufficient experience within the field of law with which we are concerned, to be able to run a hearing in such a way that it did not advantage one side or the other to have extremely expensive lawyers to assist them? Not that I've got anything against extremely expensive lawyers. Actually, since I ceased to be one, I suppose I have.
A. I'm always slightly sceptical about the value of inquisitorial systems. It's often suggested as a kind of shortcut to saving legal costs and so on. I mean LORD JUSTICE LEVESON Perhaps not a bad example I hope it's not a bad example is how we have spent the last nine months.
A. Yes. I mean, I think an inquiry is necessarily inquisitorial, but a tribunal system that's dealing with essentially individual complaints is a slightly more difficult process. I mean, it's often mentioned as a way of solving the terrible costs problems that the law experiences. I have not seen any example of it actually working in practice. Our legal culture is so different from legal cultures where they have more inquisitorial systems. I'm very hesitant about I suspect we would end up with a system which looked rather like our usual adversarial system, even if we tried to be inquisitorial. MR JAY What you are proposing is a series of incentives call them "carrots" and "sticks" and they can operate in two different ways: commercial incentives and legal incentives in relation to proceedings. Is it your view that the commercial incentives you outline in paragraph 72 would by themselves not be sufficient, but they need to operate in conjunction with the legal incentives?
A. Yes, I don't think they would be sufficient.
Q. For example, the MSA Kitemark, which would be a badge of quality, I suppose. Some people may say it's a badge of honour not to have to wear it.
A. Yes. Well, quite. I don't think that that would be a very powerful incentive in most cases. Although the idea is that this could be available to bloggers, to much smaller publishers, and as an indication of a small publisher, as it were, a badge of responsibility, it may be that people think, well, if this blogger or this small publication is a member of this body, it shows that they're serious and that they are committed to serious journalism, and therefore they're more worth reading than someone who doesn't have that commitment.
Q. Journalistic accreditation, that would give you some preferential access to material, but it couldn't be to such an extent that it would amount to licensing?
A. No. At the moment, as I'm sure has been discussed before, under the new system for access to the family courts, you have to have a form of accreditation to be able to report on the family court as a journalist. At the moment it's done through the press card system, which is a privately-run system which lacks transparency. And the idea here would be that if you were working for a participant body, that would give you a level of credibility and a level of, as it were, a certificate of responsibility, a badge of responsibility, which would allow you to be given greater access than you would have otherwise.
Q. So the incentives in relation to legal proceedings, they fall under four different subcategories. The first one you have already outlined for us, because it's a cheaper and faster system of adjudication
A. Yes.
Q. and dispute resolution, whose attributes you have explained with reference to your diagram earlier on in the
A. Yes. I mean, effectively forcing people into a quick, cheap, alternative dispute resolution system, which one would hope would dispose of the large majority of complaints, at low cost.
Q. The others, though, would require statute, and they
A. Sorry, so would that. The adjudication system
Q. Of course it would.
A. would clearly require statute.
Q. At paragraph 83, page 00725: enhanced defences in libel and privacy proceedings. In libel proceedings there would be a new defence of regulated publication. A participant who was sued for libel, who published a prompt suitable correction and sufficient apology, and paid compensation, and gave other redress as ordered by the MSA, would have a complete defence, unless the material was published maliciously. So that would presuppose that everybody has gone through the arbitration dispute resolution system, compensation has been ordered as appropriate, everybody has complied with it. That would work as a complete defence. How would that stand against the Reynolds defence and anything in the current version of the Defamation Bill?
A. Well, it would be slightly different from Reynolds in the sense that Reynolds is directed towards effectively looking at whether your journalism is responsible or not, whether you have taken appropriate steps to verify and so on. This would be, if the position was that the adjudicator had said, "You need to do this, this and this to put things right," and you did it, that would be a complete defence. So it would be an additional defence. I mean, Reynolds again, I don't doubt this is something the Inquiry has looked at before. Reynolds suffers from the difficulty of uncertainty. It's very difficult to know where the boundaries are, and it therefore has a negative effect on publishers.
Q. Can we be clear. Under the dispute resolution procedure, is it being contemplated that the mediation process or adjudication process, where there's a legal claim, will always result in the award of compensation?
A. Well, if the position is that defamation is a tort actionable per se, and therefore, if defamation is established, damages are always awarded, even though they may only be nominal, if the adjudicator decides there's been a defamation, then the adjudicator will make an award of compensation in accordance with common law principles. That's the idea. LORD JUSTICE LEVESON Do you visualise this at whatever level?
A. Yes. LORD JUSTICE LEVESON So in other words, this litigation, this argument could be massive. A large number of enormously lengthy libel proceedings. So
A. Well, they're relatively uncommon. My own professional experience is I once did a construction adjudication which lasted a week, which resulted in an award of payment of several hundred thousand pounds, and then the other party didn't like the result, went to litigation, and there was then a four-week trial where the opposite result was achieved. So that is possible in the system of construction adjudication, but in construction adjudication there is no dispute too big to be adjudicated. LORD JUSTICE LEVESON I know. Do you visualise the same for this?
A. Yes. In reality there are, these days, something like half a dozen libel trials a year, of which most are certainly less than a week or less than a fortnight. LORD JUSTICE LEVESON Don't you think that might be because it's become so expensive for everybody that that particular form of litigation has become rather unfashionable, unless you have an extremely large amount of money, or a deep pocket?
A. The reasons for the decline in the number of libel trials are complicated. One of them certainly is the case law which limited damages effectively to GBP250,000. So now the most you can get is GBP250,000, and if you conduct a long libel trial, the costs are in the millions. That's certainly had a deterrent effect. But there are still libel litigants with deep pockets. There are still some newspapers with deep pockets. Cases involving the media fight rarely, and they fight rarely partly for cost reasons and partly because people form early views as to the merits. MR JAY So we go back to your diagram, which is on page 007109 on the internal numbering. We have the complaint of a legal wrong. If the matter is mediated, then the issue will not arise because there will be a settlement agreement which will preclude any subsequent legal claim. If the matter is adjudicated, and the adjudicator orders would this be right? suitable correction and an apology
A. Yes.
Q. and the payment of compensation, then under this system there would be the ability to enforce that. Moreover, when we look at the box going down "the complainant is not satisfied with the adjudication" there would be very rare circumstances in which there could be court proceedings, at least in a libel case, because it would almost always be met by the defence of regulated publication, unless you could show malice. Have I correctly understood it?
A. Yes.
Q. But in harassment proceedings it would be different. In privacy proceedings the issue, again, is subtly different, because the defence is not regulated publication. It is public interest publication?
A. Yes.
Q. And there you would have to show adherence to the public interest requirements of the code. Determination of the MSA, in other words the adjudicator on that point, would not be conclusive but would be persuasive.
A. Yes.
Q. I understand. I'm not sure I had understood it when I first read this, but now I do. A matter of principle though, why would the decision of the adjudicator be persuasive only in a privacy case, but virtually conclusive, subject to proof of malice, in a libel case?
A. Well, I think different considerations apply in the different causes of action. The intention is that if a publisher is engaging in public interest publication, gets it wrong and gives appropriate redress, they shouldn't have further claims against them. In relation to privacy, I think the view that was taken was it was appropriate in the end for the final decision about public interest to lie with the court, so that the court has the final decision, but not the
Q. Okay.
A. But guided by the determination of the adjudicator.
Q. Okay. So you could put all that in a statute, and you have done all that for us, but again, the precise drafting is not going to be critical here. But one additional carrot, or maybe it's a stick, is additional damages. That in court proceedings nonparticipants in the MSA could be required to pay statutory additional damages, which would be akin to either aggravated or exemplary damages, I suppose?
A. Well, the phrase "additional damages" is used in the copyright context. It regards it as a statutory version of exemplary damages. It's Lord Devlin's third category in Rookes v Barnard for exemplary damages, and there's a specific statutory provision. LORD JUSTICE LEVESON Or you can put it another way, because when I asked a question about that possibility earlier, somebody accused me of wanting to punish papers for not entering the scheme. Could you say that it is a form of aggravation if you are not either in a regulated scheme with which you have complied, or any regulated scheme, or alternatively have systems, which you would then have to prove to the hilt, that are the equivalent of regulated schemes?
A. Yes. And indeed, the draft at 87.1, one of the factors to be taken into consideration is the extent to which the conduct in question was not in accordance with the code. So the idea would be that a nonparticipant publisher, if they behaved in a way which had they been a participant would have been a breach of the code, is liable to pay additional damages. LORD JUSTICE LEVESON It actually goes further than that, because that only brings the code into the damages regime. I'm rather putting a slightly different suggestion to you: to create an incentive to join the scheme by saying, "If you don't and you then are sued, you will have to prove that you have systems"
A. Yes. LORD JUSTICE LEVESON "that are the equivalent of"
A. No, that's a refinement which, I would agree, is a helpful one. MR JAY And if you don't prove that you have equivalent systems, then you expose yourself to the claim for additional remedies.
A. Yes.
Q. And the other sticks and carrots, the statutory right of reply or correction, paragraph 89. I think we can understand this best by looking at your proposed drafting at paragraph 90. This will only apply to nonparticipants. Complainant sends a demand for a reply or correction. If that's rejected, the rejections and the reasons for it should be notified to the complainant within seven days. The complainant then has the right to submit the issue of whether the preconditions for the right of reply or correction have been met by well, he submits the issue to the court. And then the court may order the news publisher to comply with its duties under this section. What exactly is the issue the court is adjudicating on?
A. Whether it's an appropriate reply or correction. So if a newspaper publishes an article to which the complainant takes objection, the complainant says, "That's inaccurate, I require you to publish this correction", and the publisher says," No, I stand by my article", in which case the complainant has the right to go to court for the court to decide whether that is an appropriate correction or not. Can I say, it's modelled on the system in Finland, which is included in the relevant Finnish media statute.
Q. How does this differ then from an action in defamation? Because the court will have to decide whether or not the original article was inaccurate or misleading. If the court says, "No, it was accurate", well, then the right of reply falls to the ground, doesn't it?
A. Well, the right of correction. It may be if there's a dispute about the facts that a reply is the appropriate way to deal with it, and very often there's no dispute about the facts. But if there were to be a dispute about the facts, the court would say, "Well, we're not going to enter into that, but you can have a reply. You can set out what your version is." The court may say I mean, of course if the position is the it is said by a newspaper of a notorious criminal, "They are a notorious criminal", and the notorious criminal asks for a correction, the newspaper says, "No, because what we said was right, and we're not going to give you a right of reply", and the court says, "We're not going to give you anything because you are a notorious criminal." It's not an absolute right. But again the idea behind this is that to enhance the rights of individuals against non-participants, so that non-participants can't get off scotfree with inaccurate reporting, so that there's some additional remedy that individuals have against non-participant publishers. As you know from the history of Clive Soley's bill and so on, this is exactly the kind of provision that the media don't like. It's something that they find uncomfortable, being forced to publish replies or corrections, and the idea is to make it uncomfortable.
Q. So if you have an absolutely cut-and-dried case of your notorious criminal, where there's really no answer to it, and therefore there's nothing to reply to, the court will say, "End of story, there's no right of reply". But in most cases there will always be another side of the story, and the court will say, "We are not really interested in the rights and wrongs here, but we can see there's an argument the other way. The complainant has the right to reply in an appropriate and proportionate manner."
A. Yes.
Q. I understand. You say from experience that this sort of obligation will be, if I can put it in these terms, very irritating to news publishers, and therefore will be an incentive to join the voluntary system, from which of course, if they do join, they are exonerated from the duty?
A. They're exempt from the duty, yes.
Q. I understand. Then the other whip, if that's correct characterisation, is the conditional fee agreements and qualified one-way cost shifting. Do I understand though this is paragraph 89, second bullet point this proposal was one that Lord Justice Jackson in his review recommended for defamation cases is that right but the Government rejected?
A. Lord Justice Jackson made two recommendations. One was to very much reduce the size of the success fee, which the Government accepted. The other was to abolish the recoverability of after the event insurance premiums, but to replace it with qualified one-way cost shifting. The Government agreed to abolish the recoverability of the insurance, but didn't introduce in defamation and privacy cases the qualified one-way cost shifting. So the provisions will be, when these provisions come into force, that someone who brings a defamation or privacy case with the benefit of a conditional fee agreement isn't able to protect themselves against exposure to the other side's costs by after the event insurance. LORD JUSTICE LEVESON They're able to protect themselves; they're just not able to recover the premium.
A. You're entirely right. They can, of course, take out the insurance, but what they can't do but it's a cost that they must bear, come what may. MR JAY But on your proposal there's no need for after the event insurance because there's one-way cost shifting.
A. Yes, and one of the points that Lord Justice Jackson made, which I'm sure is right, is that from a defendant's point of view qualified one-way cost shifting makes more economic success because the amount the amount you recover when you win from insurance policies is much less than the amount that you pay out when you lose to cover insurance premiums.
Q. So on this system, if the claimant wins, the claimant recovers obviously his damages. He also recovers his costs with a success fee up to 75 per cent?
A. Yes.
Q. If he loses, he's at no risk as to costs because there's qualified one-way cost shifting?
A. Yes. And this is a rather reduced version of what currently applies, and the idea is to make this, as it were, to continue to apply to non-participants, so that again so that members of the public have remedies against non-participants, because against participants they have remedies through the MSA system.
Q. If one says, "What about the vexatious claim?", the answer is the vexatious claim can be struck out either under rule 3.5, I think it is, or part 24?
A. Yes.
Q. So there's that safeguard in the system?
A. Yes, as at present. LORD JUSTICE LEVESON Another way of doing it would be to say if you're in the system, then you have a free-to-use potential remedy.
A. Yes. LORD JUSTICE LEVESON That's for the newspaper. So claimants have a straightforward route. If you choose not to participate, there's absolutely no reason why you shouldn't pay the costs if you lose, and there may be good reason why you shouldn't recover your costs even if you win, because if you'd been in the system you could have done it all for nothing.
A. Yes. MR JAY And your point is, Mr Tomlinson, that if you take all these aspects together and aggregate them, the commercial and the legal, you have such a strong system of incentive that only an irrational news publisher would fail to sign up on the dotted line.
A. Yes.
Q. Is that it? Yes. Those are all my questions. Thank you very much. LORD JUSTICE LEVESON Is there any aspect of the work of you and your colleagues that you feel you've not had the chance to elaborate upon?
A. I don't think so. I mean, it is certainly my professional experience over the last 20 years is that the there are many occasions on which the media has abused its position, particularly in relation to privacy cases, which are I've had a lot of involvement in over the past two or three years, and without some more effective form of regulation, the remedies available through the courts are both expensive and not wholly effective. Without some more effective form of regulation, the practical position is that privacy rights are simply not protected, as one has seen in notorious cases over the past two or three years. This is an attempt to try and square the circle and LORD JUSTICE LEVESON Could I ask, were any of your participants of tabloid of mid-market experience within journalism?
A. I think the I can't speak for Mr Peppiatt, of course is LORD JUSTICE LEVESON Well, Mr Peppiatt
A. a former LORD JUSTICE LEVESON We know about him.
A. You know about him. Those of editorial experience, I think it's fair to say, come from the broadsheet or the BBC end of the market. LORD JUSTICE LEVESON Thank you very much. We will take a break. Mr Tomlinson, thank you. (3.18 pm) (A short break) (3.25 pm) MR JAY The last witness today, and this week indeed, is Lara Fielden, please. LORD JUSTICE LEVESON Thank you. MS LARA ANN FIELDEN (affirmed) Questions by MR JAY MR JAY Your full name, please, Ms Fielden.
A. Is Lara Ann Fielden.
Q. Now, you kindly provided us with a report which is entitled Regulating the Press: Comparative Study of International Press Councils, dated April 2012. It's under tab 32. Insofar as there are statements of fact in this document, are they true to the best of your belief?
A. They are.
Q. Will you tell us, first of all, about yourself? This is on the internal numbering it's going to be page 1, our page 00580. Your a Visiting Fellow at the Reuters Institute for the Study of Journalism. Before then, between 2005 and 2010, you were with Ofcom, and before working for Ofcom you spent ten years as a news and current affairs producer for the BBC; is that right?
A. That's all correct, yes.
Q. Can you tell us, please, the circumstances in which this report came into being?
A. Yes. I'm currently a Visiting Fellow at the Reuters Institute for the Study of Journalism, and as part of that Visiting Fellowship I have produced two publications, one looking at cross-media regulation and current inconsistencies and a potential coherent framework for the future, and a second publication, which is the one that you refer to, which looks at six international press councils, really looking at what the lessons of principles might be from each of these, not by suggesting that any, by any means, is a blueprint for this country, but looking at whether there are lessons that can be learned. LORD JUSTICE LEVESON I notice you say in November 2011 you published a book. When did you produce this?
A. This was published in April. LORD JUSTICE LEVESON That's what I thought. Was it prepared specifically with the Inquiry in mind, or was this a piece of work you were doing anyway?
A. The book that I wrote last year, looking at regulation across platforms, drew on some international examples, and I was then asked by the Reuters Institute to amplify those examples, and I think there was some discussion between the Institute and the Inquiry as to whether that might be helpful, and it was decided it was. LORD JUSTICE LEVESON That's what I thought. It was to you that I was referring earlier today. This is a monumental piece of work which must have taken you
A. Should I apologise? LORD JUSTICE LEVESON No, no, it's my admiration. It must have taken an enormous amount of time to put together and I'm very grateful to you. One could go into each one of the examples in enormous detail. I have read it all. What I would be very keen to do and of course it's subject to what Mr Jay wants to ask you about is to focus on those that are likely to be most similar to our own cultural requirements because, as you heard Professor Horgan this morning, he spoke about the cultural differences between Ireland and England, which might mean a different approach works in one place where it doesn't work in the other.
A. Yes. LORD JUSTICE LEVESON So I have no doubt at all that in some of the countries with which this report deals, their cultural relationships with the press are very different to that which is experienced in this country.
A. I think I think of course there's of course there's truth in that. But I would say I think they're more similar to us potentially than they are different in that in choosing the countries that would be most relevant for this report and for the Inquiry, the idea was to look at they're all mature democracies. They all rank on the various press freedom indices as having a free press. They all value freedom of expression, freedom both to impart and receive information. They all have a press council framework. So that was the sort of common ground between them. And of course you are absolutely right. There are cultural differences, although I must say I've been quite surprised in terms of actual specifics of complaints and stories pointed to me, they're incredibly familiar actually across the tabloids and the press that these press councils regulate. LORD JUSTICE LEVESON That's itself a very important piece of evidence. So do you think that it is misplaced to say that the issues that have arisen in this country in relation to aspects of the press not all the press; I'm happy to record, as I do, that a very great deal of the journalism that goes on in this country is all in the public interest and very well done but it's misplaced to think that aspects of the press in this country are very different to the sort of approach that would be seen in these other democracies?
A. Well, what I haven't done in this report is an exhaustive survey in terms of diversity and plurality and ownership of the media in the countries that I have looked at. But what I am aware of from what the press councils have pointed up to me are examples of, for example, Bild newspaper, very high circulation, very influential newspaper in Germany, credited with bringing down the German President earlier this year, Christian Wolff, because of an investigation into his financial dealings, that sort of power. And in Scandinavian countries, you know, a very much stronger tabloid press than there may have been in the past, much keener to look at the shenanigans of their politicians potentially than they might have in the past. So I would say that the examples, as I said, felt familiar to me in terms of what the press councils were dealing with. Their starting points though in terms of cultural difference, their starting points, I would say there's difference in the Scandinavian countries over privacy, for example; that the starting point is "you will not infringe privacy unless there's a very good reason to", whereas, say, in Germany, Finland Germany and Australia, there's much more of a sense of "if you infringe privacy, it better be for a good reason". So there's more of a recognition of competing rights. So those, I would say, are differences. LORD JUSTICE LEVESON All right. MR JAY In terms of how we best proceed, it may be helpful, Ms Fielden, if in your own words you could summarise the different regulatory systems in the six countries which are the primary focus of your study. You draw in lessons from Canada, New Zealand and Norway, but only on an eclectic basis.
A. Exactly. I'll try just to do this briefly, and do please move me on if you've heard enough about one country. If I take you from the self-regulatory voluntary end through to the co-regulatory mandatory end, if that assists. So at the most self-regulatory end, pure self-regulation, if you like, I would point to Germany. This is a press council that has no independent members on it whatsoever. It is regulation of the press by the press, entirely voluntary, entirely self-regulated. Moving along the spectrum is Finland, where there are independent members of the Press Council, but it's an industry majority. But interestingly, it actually regulates across both print and broadcasting. So there's a slightly different dimension there. Sweden operates a more independent self-regulatory system in that the Press Council chair and vice chair must be members of the Supreme Court, and that is seen as a way of guaranteeing some sense of independence, and again there's a lay or independent majority on the Press Council. LORD JUSTICE LEVESON So they are judges? So the chairman and vice chairman are judges?
A. They are judges. LORD JUSTICE LEVESON I don't think they would like that in this country.
A. Possibly not, but that's the system they have in Sweden, and they do see it as a way freedom of the press is extremely important in Sweden, but they see it as a way of underpinning independence. That's for what it's worth. Moving to Ireland, I think you start to encounter statute, as you heard in detail this morning from Professor John Horgan of the Irish Press Ombudsman, where there is statutory recognition in relation to the Press Council and an independent majority. And at the furthest end I would point to Denmark, where there is the Press Council is actually is set up in statute in the Media Liability Act, Accountability Act, and that means that the Press Council has the duty to enforce the right of reply as well as to uphold press ethics. I think we would call it a co-regulatory system, because although it's established in statute, as far as the press ethics rules are concerned, there is then a sort of self-regulatory element in terms of who is actually adjudicating, who is on the board, who is responsible for the rules. Outside of those countries I would point to Australia, which is going through seismic change at the moment. So it currently has an independent Press Council, but the Australian Convergence Review, which has just reported to government, is suggesting dismantling the structures, both for broadcasting and for the press, and regulating across media where the largest media providers across platforms would be subject to mandatory and statutory regulation. So it's difficult to place Australia at the moment. LORD JUSTICE LEVESON But that's still up for debate?
A. It is, it is. The recommendation LORD JUSTICE LEVESON We have heard that's the Convergence Review.
A. That's right, and the recommendations are sitting with government at the moment. LORD JUSTICE LEVESON By a silk? A retired judge?
A. That's right. It is a retired judge. LORD JUSTICE LEVESON Finkelstein, I think, was the
A. The Finkelstein Review fed into it. They didn't actually go his recommendations were somewhat more draconian, and they didn't go with those at the end. Their recommendations would only capture the top the 15 largest media providers in Australia, whereas I think he was suggesting a mandatory regulation of effectively the media barring the very smallest. MR JAY In some of the countries you have mentioned the Press Council, the regulator, is principally involved with resolving complaints, but in others there's an additional standards setting and enforcement function. Could you explain to us which countries fall into which categories?
A. Yes, absolutely. In fact, it's not even quite that simple because within complaints I would draw a distinction between those countries where the Press Council only takes complaints from somebody personally affected by the material and those countries that will take complaints from the whole general public. So in Sweden and in Denmark and in Ireland you can only bring a complaint if you are personally affected. In fact professor Horgan, who you heard from this morning, adopts a fair degree of latitude in terms of accepting complaints. But you do have to demonstrate that you are personally affected. Whereas in Germany and Finland and in Australia any member of the public can bring a complaint, which means, for example, if you feel that there were misleading statistics to do with crime or immigration used for a particular purpose, you could bring that simply as a citizen, you could bring that complaint to the Press Council. In terms of wider standards, if you start to drill down, although lots of these press councils say on the surface, "Yes, of course we're very concerned with standards", if you ask them to demonstrate that, I think often they find it quite difficult. So even in Ireland, for example, I think Professor Horgan would be out and about and engaged in debate, and it is certainly open in many of these countries for journalists to ask advice and to seek to raise their standards in conjunction with the press council. But I would point really only to Australia as a press council that has quite recently, but quite dramatically, decided that they are going to be involved in standards to the same extent as they are to complaints. In fact, I think the current chairman of the Press Council there is actually much more interested in standards. They've recently set up an advisory board, which I believe will be involved in what they call impact monitoring. So as well as the complaints that come in, they will actually look at the Australian press and consider what is the coverage of a particular topic, be it something like climate change or immigration or something like that, and not be entirely complaints-driven. Although it may be because of complaints that they look at those issues, they'll have a wider scope. In looking at standards, what the Australian Press Council also does, I think somewhat uniquely, is really engage the public, and it's been through a whole series of public consultations recently, triggered, I think, as well, by the Convergence Review, and I think triggered by the fallout from phone hacking here, to really ask Australian citizens and they've literally gone round the country consulting as part of the Convergence Review what is it that they want out of their regulation. LORD JUSTICE LEVESON Have they had the response?
A. Well, I think they've had very interesting debates about this. I mean, Australia is very different to us, and one of the key differences I would point to is actually within the code. There's a requirement for balance within the code, and I think that's something that citizens have fed back to them. It's different, I think, to what we understand by impartiality in terms of broadcasting, but Australia, I think, has a problem, which is in many of its largest cities, the Press Council put it to me, there will only be one newspaper. You're either a News Limited city or you're a Fairfax Limited city, or there's a lot of concern that although nationwide there's a whole range of media, for some citizens they will not have access to that regularly, and that's where this and unique amongst the countries I have looked at, this issue of balance has come in. MR JAY Across the six countries you're principally looking at, the powers of the regulator differ significantly. Sometimes there's power to award compensation; sometimes there isn't. Sometimes there's power to impose a sanction beyond a critical adjudication; sometimes there's not. Could you summarise those differences for us, please?
A. Yes. There's no power to award compensation in any of these, and in fact as a primary sanction there's no power to fine in any of these press councils. The leading sanction is publication of a press council adjudication or, in the case of Denmark, that right to reply results in a published correction. Where money sort of comes into it is that in Sweden there is I think it's akin to an award of costs. If you breach, you will be expected to contribute towards the costs of that breach. It's that polluter pays I think we were discussing earlier on that polluter pays aspect, and therefore you will pay an administrative fee. But that's not a fine. It does actually contribute up to 20 per cent of the income of the Press Council there, but that's the only way that would come into play. In Denmark, which as I said is a mandatory you are obliged to be regulated by the Danish Press Council if you are a broadcast licensee or if you are a print publication printing more than twice a year. If you fail to publish the Press Council's adjudication, then you, as the editor-in-chief, could be fined or sent to prison for up to four months. It's never the prison sentence aspect has never happened. There were a few fines in the early years, in the 1990s, and they've not happened since. In fact, I wouldn't mind returning to compliance in Denmark later.
Q. I think Mr Tomlinson said that his right of reply provision, which he explained towards the end of his evidence, was derived from the Finnish example. Was he right about that? I think from what you're saying it may be the Danish example.
A. No, there is a Finnish set out in the Media Act in Finland there is a right to reply, and there is one in Germany under the German constitution. But when I asked the press councils about this, they said, "You must understand that is entirely separate to the scope of the Press Council. That is a right that you would pursue, and it's your right as a citizen, through the courts. What we do is to provide a different remedy in terms of publication of our adjudication, and we are led by the standards set out in our code. That's separate to the courts". In fact I have to say, each of the Press Council shares and ombudsmen made this point to me. Even the Danish Press Council chair, who is also a Supreme Court judge that's how it's also established in Denmark made this point that the right to reply that is administered by the Press Council is very narrow. It's a correction of very specific factual inaccuracies that could have that you would say, as a complainant, has materially affected you or disadvantaged you or had a negative consequence. But again, that is separate to the courts.
Q. In different countries are there in certain situations, certain countries, threshold size requirements? In other words, if you are small enough, you're outside the regulatory net altogether?
A. Well, I'll talk about what Australia is proposing in had a moment. But as the press councils stand at the moment, all bar Denmark are voluntary systems. So there isn't an issue in terms of whether you're large or small. But in the Scandinavian countries, you are required to register your publication. It's put to me as similar to sort of Companies House. It's not licensing of the press, but you are required to register your publication and your editor-in-chief, a named editor-in-chief who is responsible, and so that sort of takes you into the ambit of, you know, what's considered to be the press there. But no, there's no threshold. What's proposed in Australia under the Convergence Review is that, regardless of the platform on which you deliver your content so it could be online, it could be broadcast, it could be in print if you hit a certain threshold I think they're talking about a revenue of more than 50 million Australian dollars a year coupled with a threshold of an impact on Australians so you have a certain number of readers or hits then you will be caught by mandatory regulation, and so caught in there are the 15 largest companies. But Google, for example, would not be caught by it because although it has a very large access by Australians, the revenue actually comes under in terms of professionally produced material. Some of the Australian press have somewhat cynically argued that actually the Convergence Review set out with 15 companies in mind, and then set the requirements in order to catch them in terms of mandatory regulation, but I don't know if that's true.
Q. What about different approaches to new media across the six or nine countries you've been looking at?
A. So Australia, under the Convergence Review, new media would be caught equally as old media, depending on whether they hit that threshold. For the other countries, I would say they are as they're on the back foot as far as new media is concerned, I think as we are here, because each of these press councils have been set up with the printed press in mind. They've then been enlarged to take the online versions of the printed press, and now they're confronted by new media, and that's a huge issue, because if your funding mechanism is set up based around print publications and some of them also have contributions from journalists' unions as well. But that is your model, and then new media want to join, which of course you would want to encourage those standards, it's a problem in terms of how do they pay in, what do you expect of them, and more to the point, if they're paying for it, what seat do they have at the governance table? Those are real questions, and as far as I could see at the moment, there are a whole series of fudges going on while they grapple well this, and to some extent look here to see what happens. So in Sweden new media can come in. They simply pay on that polluter pays basis, and it's just a short-term fudge. If you can keep out of trouble, then you don't need to pay. If you're in trouble, that's the mechanism through which you pay. In Ireland you pay a flat fee of GBP200 a year. So there are different ways of approaching it, but I think they all dread the point at which they will have to dismantle the existing structures. LORD JUSTICE LEVESON And they are looking to this country for an example?
A. Well, they're interested. It was mentioned to me that they're interested to see what happens here. But I would say only in Australia is the Convergence Review, because it's looking completely across platforms, and actually looking to suggesting dismantling the broadcasting licensing regime at the same time, everything then comes into play there. I think they're also concerned about, you know, what are the standards then that they would expect of new media, and then new media themselves aren't necessarily seeking to join in droves I'd like to come back to Denmark on that because they've always seen themselves as sort of if you talk about the fourth estate in terms of journalists, they see themselves as the estate four and a half. They want to sit outside. They are part of that debate. If I could just spend a moment on Denmark, what interests me about Denmark actually is not the mandatory co-regulatory model. It's the fact that online providers can join on a voluntary basis, and they are joining. In Denmark they are joining in droves, and the reason that they're joining is it's, I think, in their commercial as well as ethical interests to join up. So in Denmark you can join a Twitter account, a LinkedIn profile, Facebook. All can be members if they are imparting news in some way. And the benefit that they get from that is being able to differentiate themselves from other media that's unregulated, and an access to things like protection of sources if they came up against the same issues that traditional media come up against. And that seems to be very interesting, that they are they are embracing regulation as something positive that differentiates them from the rest of the online world. LORD JUSTICE LEVESON How do they pay?
A. Well, another positive is they don't pay at the moment. So they are accepted in and they're sort of freeloading, as it were, on the system while the Danes try to catch up. So they haven't yet worked out a funding mechanism. They only pay if they are affiliates of existing members. So if it's the online presence of a broadcaster or the printed press. But online only don't pay. Nor does commercial television pay in fact. It's funded by public service television, the broadcasting part of it. LORD JUSTICE LEVESON This question of protection of sources, which of course is available in this country for journalists, I would have to think about whether somebody who put a blog online could claim that protection, because I can see that would be a tremendously valuable asset.
A. Absolutely. Absolutely. And it does have value. I think online providers are realising that, you know, they could be caught by some of the restrictions that might potentially be placed on them exercising freedom of expression certainly in a way, and yet not have benefits that traditional journalism have had, and this is a way for them to join the system in that sense, and I think they see that as protective. LORD JUSTICE LEVESON So if you define it may not be possible, I've not thought about it journalistic protection as involving membership of an organisation that regulates how you're doing your business
A. Yes. LORD JUSTICE LEVESON that becomes an incentive. Whether it works or not, I'll have to think about.
A. I don't know if I can pursue that thought. I know I don't want to add countries into the mix, willy nilly, but I would quite like to mention New Zealand in that context. There's recently been a Law Commission review in New Zealand, and it's looking at where what they call new media and traditional news media collide. What the Law Commission has asked there is: what are the privileges and the benefits that we accord to traditional media which we might think about according to new media? They've come up with a list of those, and they're the sorts of areas where, whether you call it a privilege or a right or a benefit, where you might argue, as I think you have heard from other witnesses they've looked at things like defamation proceedings and whether you're arguing responsible journalism there, and maybe a public interest defence. Privacy proceedings. They've looked at protection of sources. They've looked at the privileges in terms of court proceedings, you know, access to confidential briefings. Potentially, I think you coul add into that any areas where traditional media where we give a privileged position to traditional media. You could start to ask: well, who should benefit from those privileges? So, for example, I know there have been discussions about the public interest in relation to prosecutions by the CPS, or even the public interest test that applies to cross-media ownership. I think there's a whole network of ways in which we privilege or give a special place to the media, and in New Zealand they are asking whether those a bundle of rights and privileges should be extended. What they have consulted on is whether as a quid pro quo for that you would expect new media to voluntarily or on a mandatory basis be part of a regulatory body. LORD JUSTICE LEVESON Well, it wouldn't necessarily be a quid pro quo, would it? It would be saying one of the ways you demonstrate that you're entitled to X, Y and Z is by demonstrating that you should have them by being involved in that sort of system.
A. That's exactly right. And that's where the Irish model, which you heard about this morning, I think is very clever because I know they don't have a whole bundle of these. They just look at defamation. But it seems to me that what the Defamation Act in Ireland is saying is not they're not particularly interested in fact in the Press Council as a tick-box membership. They're interested in: have you got a commitment to regulatory to responsible journalism, to accountability? And a way of demonstrating that is to be a member of the Irish Press Council. But they leave the door open to other ways of demonstrating that. So if you sit outside the Irish jurisdiction, you might be a member of a different body. If you're Thompson Reuters and you are global, you might point to your own standards. If you're a little blogger, you might point to, again, your own standards set out on your website. But the easiest way to demonstrate those standards is to be a member of the Irish Press Council. So that gives regulation, it seems to me, a value, and that's why I would argue Richard Desmond isn't a member of the PCC, but is a member of the Irish Press Council, because membership of that body demonstrating your ethical standards has a value there. It has a legal value, as well as an ethical value, potentially a commercial value. MR JAY Well, that leads into the issue of incentives, because they vary across the various voluntary systems you have looked at. Plainly they aren't so important in a compulsory system. Could you tell us, please, about how the incentives operate across those systems?
A. Yes. I think Press Council membership that is voluntary I mean, one of the leading incentives is that you have access to a very easy and swift complaints mechanism, whoever you take complaints from, whether it's public or purely the individuals concerned, and that's hopefully a way in which you avoid expensive legal proceedings. So that's one of the central planks. But I think now in the online world, it's also becoming an issue about differentiating yourself. So the Swedish Press Council and you might argue there's a very different cultural context there. But the Swedish Press Ombudsman pointed me to a recent example, where a Swedish paper that had got something very wrong had been censured by the Press Council and ordered to publish the Press Council decision, off its own bat published it on the front page, and the reason it did that was to say, "This is our compact with you, the reader. We are different. We aspire to very high standards. When we get it wrong, we will tell you that we've got it wrong, very visibly so". And so I think increasingly it's becoming a way of differentiating your content. Certainly in Ireland and Australia, they are seeking now to link it with a standards mark that is readily recognisable by the public. LORD JUSTICE LEVESON And that is to demonstrate that news read in the press, whether it's paper or online, carries with it some assurance of accuracy, validity, proper research, which the conversation in the pub never would.
A. That's exactly it. It's an issue of credibility. And I think people have talked about "kitemarks" here. Kitemarks, I think you associate with things like boilers and pieces of equipment. I think this is more like the sort of Fairtrade Mark, where Fairtrade says to you, "Our products conform to certain standards. They're ethically sourced". And it's a bit like saying, "We have a commitment to standards and our journalism is ethically sourced," as it were, and that's what you are demonstrating. So rather than it being, sort of, you know, buried on your letters page, you would emblazon that. I think that's what's being encouraged now in Australia, in terms of differentiating. It's on the front page online, not six clicks in. I think earlier this week you referred, your Lordship, to the old Groucho Marx adage about: "I do not want to be a member of a club that would have me". This is a club you want to be in. It's a valuable commodity, and in Australia, where they're sort of trying to move the approach to regulation MR JAY You wanted to address the issue of compliance, I think. It may be a convenient moment now to do so.
A. Well, I suppose to say that the examples that I've drawn on that interest me in terms of compliance comes to this issue of: is regulation something that you try as far as possible to avoid, and to slough off, and to make sure is as minimal as possible, or is it something that's actually part of your DNA, and that your standards are a selling point? I think that is where there seems to be starting to be a debate around. Martin Moore, I think, from the Media Standards Trust, earlier this week said he didn't like the idea of incentives, because it smacks of trying to cajole a reluctant provider into the regulatory fold, or you compel them to be in the regulatory fold. Whereas if you see a real value to being in, then actually the biggest threat to you would be to be turfed out of that regulatory fold, not to be able to display that mark of your standards, and not to be able to use your Press Council membership to demonstrate responsible journalism in court proceedings or wherever else, as is being explored in New Zealand. In Denmark there is a co-regulatory system, as I have said, statutory. And it's backed, as I have explained, by the threat of a prison sentence. And yet there is currently parliamentary scrutiny by the select committees in Denmark of culture and legal affairs, which is looking at why there are failures within the Danish system. Why are Danish newspapers still, even within this co-regulatory framework, burying publication of an adjudication on sort of page 54? Where I think there's an interesting distinction is between those publications that are caught and are required to conform to the regulation, and those online providers that are actively seeking it out. That's where I think there is a different approach to what "regulation" means.
Q. Can I ask you, please, about the public interest? This is section 6 of your approach. There are different approaches to it. You touched on it earlier, that the burden of proof, as it were, differs, that in some countries and we can see rule 7 of the Swedish code: "Refrain from publicity which could violate the privacy of individuals, unless the public interest obviously demands public scrutiny." So that's quite a high standard to prove. But could you tell us, please, how the position differs across the six countries you have been looking at?
A. I think the broad distinction, as I mentioned very briefly earlier on, is between the Scandinavian countries and the others. I think the Scandinavian countries, as you say, it's a much higher the starting point is a thou shalt not, that you start from a position where you do not infringe privacy unless there's an overriding public interest. Whereas in the countries I looked at Ireland and Australia and Germany there's a different approach. It's more of a sort of balancing act approach, as it were. In terms of the public interest, although it's mentioned in each of the codes, it's only in Ireland and in Australia that they, as it were, have a stab at defining it. You heard the principle from Professor Horgan this morning, and essentially Australia does the same thing. But it seems to me what they do actually is to substitute "legitimate". They say it's a legitimate interest. I think they all look on a case-by-case basis at the public interest.
Q. Virtually all of the instances you have been looking at, one has to calibrate it against Article 8 and Article 10 of the Convention. I'm not sure all six of your principal countries are I think actually they are all signatories to the Convention?
A. I believe they are. LORD JUSTICE LEVESON Before you pass on, could I go back? I meant to ask you when you were talking about in or out.
A. Yes. LORD JUSTICE LEVESON One of your boxes on page 44 of your report refers to what was happening in Canada, as press councils in a number of the provinces are closing down. Your example there is some months old. How has that developed?
A. Since I published this, the newspapers association in Canada convened a conference, and are now effectively consulting on what the future might be, because they are very aware that they're there is a real tension here. Voluntary members of the Press Council began to see the press councils as, I think, overly politically correct, overly constraining. There was no value to go back to Richard Desmond to being a member of the Press Council, they began to see. And they started to pull out. Therefore funding pulled out, and you saw this kind of breakdown. The response on the other side and I think most prominently in Quebec has been to think about potential mandatory requirements to pull them back in, which has been very controversial. I think in Quebec they were grappling again, like New Zealand, with: what is a journalist today? What do we expect of a professional journalist? And they were thinking there about statute in terms of defining what a professional journalist is, and therefore whether subsidies and other things flow to publications which sit in a regulatory fold. That's something that has been discussed and consulted on. They haven't yet decided where to go with it. But this concept of a professional journalist who you would expect certain standard of has been seen as effectively a licensing of journalists. So you would be barred from certain things if you didn't meet the criteria of being a professional journalist; one of which would be to be a member of a press council, and it effectively makes membership mandatory. LORD JUSTICE LEVESON Is there a reason that this is all coming up at the same time? We've spoken about Australia and the paper and the Convergence Review. We have talked about New Zealand. You have now mentioned Canada. The Inquiry has heard from India, that they're looking to see we know about that. What's happened to cause all this?
A. Well, I think there is an issue about convergence. And I have to say, I started looking at this about a year and a half ago for the Reuters Institute, before the phone hacking scandal. So just looking at the discrepancies that now seem to be arising between not so much complaint mechanisms, but as citizens, what should our expectations be of content that's out there? How is it that broadcasting is, you know, regulated by comprehensive statutory rules, whereas the press is subject to voluntary rules? Online to barely no any rules at all. Video-on-demand to two very, very circumscribed editorial rules. And yet it's all starting to look the same, combined with influential bloggers, new media, a whole debate going on there that simply doesn't fit currently comfortably within the regulatory structures. And I think that's where these tensions have arisen. They're being faced by the press councils, as I said, all over the world, and I believe they were there before this Inquiry, and they have been bubbling up for some considerable time. LORD JUSTICE LEVESON What's the prospect of them reporting in time for me to learn something?
A. The Convergence Review in Australia or LORD JUSTICE LEVESON The Convergence Review has been
A. The government hasn't yet made its decision. LORD JUSTICE LEVESON But they have not made a decision.
A. No. LORD JUSTICE LEVESON Anybody else anywhere near making a decision?
A. The decision is due in the autumn. I think New Zealand, the decision is due in the autumn on their maybe there's some reason why they're all waiting. It's also due in the autumn. The Danish parliamentary scrutiny is also due in the autumn. LORD JUSTICE LEVESON Carry on. MR JAY You touch on this in your report, Ms Fielden, but only touch on it. Are you able to assist us with how effective these different systems are assessed to be in their individual jurisdictions? There's a hint in your report that in Germany it may not be working particularly well. But can you evaluate these for us?
A. It's a very difficult question to answer. In Germany, I think you can point to I mean, I pointed to two examples where press council members were required to publish the determinations of the press council adjudication, and in one case Bild newspaper put the headline as "Crazy Press Council Decision", then ran the adjudication, and then afterwards, with a right of reply that they have under the German constitution, wrote, "This is clearly a rubbish decision and we stand by our story". So that's one indication of an issue over compliance. Bauer Media in Germany currently has not published the adjudications from last year, and is refusing to sign the voluntary undertaking that exists in Germany to publish those determinations. So that's an issue there obviously in terms of how successful the press council in that completely self-regulatory way is, and actually, you know, managing its constituents. If you measure by complaints LORD JUSTICE LEVESON So the risk, therefore, is that that will generate sufficient public demand for something rather different?
A. Yes, although I think that works out I mean, in Germany there's very vibrant public space, public debate blogs that enter into debate over this. It's almost as if the press council is one area of debate and regulation. But if the press council cannot oblige one of its members, as large as Bauer, to publish its adjudication, obviously there's a serious issue there. But if you're trying to measure this in terms of complaints and complainants, then I think press councils point to mediation as one way of remedying what the public are asking for. So in Australia they as the press council chairman put it to me, he feels that adjudications are the sort of absolute last resort and really where everything else has failed, because a simple remedy, you know, an elderly widow whose son's suicide has been all over her local press and misrepresented in some way may want something very specific and very swift in terms of a takedown or an apology, or whatever it might be, and you don't need to get to the formal adjudication side. So it's difficult to use any measures to say, "This demonstrably works because you get X number of published adjudications" LORD JUSTICE LEVESON That was one of the points I was making with the professor this morning, that one can't just look at the number of adjudications.
A. No, absolutely. LORD JUSTICE LEVESON But the problem about mediation or personal resolution is one may default to the lowest common denominator, and the complainant, who doesn't have power or authority, may feel inhibited from taking on the press that does have power and authority, and therefore accepting something that may be far less than ultimately he or she might receive is preferable to undergoing yet another bout of argument about it.
A. I think that's true, although I think actually I'm sort of thinking back to when I was involved in Ofcom in terms of regulating complaints, fairness and privacy complaints that most often people, they may not know what their rights are, but they actually have a very clear idea about what the remedy is that they would like. Clearly, if they want a financial remedy, at Ofcom as elsewhere, they can't gain that. But they often do have a very clear idea about the bit of the record that they want set straight, or the apology that they would like to receive. So I think it's true people could be disadvantaged by not fully understanding their rights and what they might be able to get out of the publisher. But in my experience, they do have a clear idea about the remedy that would satisfy them. LORD JUSTICE LEVESON And that may be sufficient, is what you're saying?
A. That's right. And is there any need to have a long and protracted process? As long as you keep tabs on, as I think Professor Horgan said, what is being settled and how. So that you can think about compliance in terms of the members. LORD JUSTICE LEVESON But that's a problem, isn't it? Because if you're requiring the complainant first to go to the newspaper, then you will never know how many complaints have been
A. That's right. LORD JUSTICE LEVESON resolved by the newspaper's publication of some correction or apology, and therefore have never, as it were, come above the parapet, unless you have then thinking aloud some requirement for audit.
A. Precisely. LORD JUSTICE LEVESON So that the press has to report in once a year how many complaints they received, how many they rejected, how many they mediated by this, that or the other. So that you can keep an eye and decide whether you want a wider standards audit. But that's outwith most of your press councils.
A. That's right. In terms of requiring an audit, that's right, they don't require that. And you are right, that's absolutely a way to do it. The other way in Australia is you actually encourage them to come to the press council first, rather than to the members. So they take the flipside, say, to Ireland, where you're required to go to the newspaper first. In Australia they encourage you to come straight to the press council. They want to keep tabs on it, and they want any investment in complaint handling to be through them. So that will be funded by the industry but through them for that very reason. Complaints then aren't delayed and they have a handle on compliance that's not compliance. They have a handle on how many complaints are being made. Of course they would do. LORD JUSTICE LEVESON I'm taking you outside your brief, but my immediate reaction to that is that one would want to encourage everybody to have their own complaints handling system and to deal with them efficiently, not least to minimise the work of whatever council is exercising an overarching influence. But that does require some sort of audit to maintain standards.
A. Yes. Yes, I think it does. If you go down that route, then I think it does. MR JAY Ms Fielden, may we look at your conclusion section. On the internal numbering it's on page 94. On our page it's 000673. What you do here is, tentatively at least, draw out some of the experiences from your six or nine countries and see how they might be applied to the United Kingdom. So may I invite you, please, to talk us through the key points which you're making in this section.
A. Yes. Thank you. I don't know whether you want me to set them out in a particular order or just
Q. No, follow your own course.
A. more generally. I think, and probably from what I said earlier on, my conclusions from looking at this go back to, I suppose: what is it we're trying to achieve here? And I think a commitment to ethical standards, as I mentioned, built into the DNA, I think, is what we're trying to achieve. It seems to me those areas where thought is being given to regulation being something that you want to be on the inside of are successful and are worth looking at, whether it's the online providers wanting in, in the Danish model, or the recognition that is given in the Irish statute. So that active compliance, I think, comes along with a recognition that regulation, you know, makes good business sense and it makes ethical sense, and potentially, with statutory recognition, it makes legal sense. But secondly, not looking at it from the point of view of the businesses and the providers here, looking at it from the public's point of view, I think there is something and your Lordship talked about what is going on here, what are these sort of fundamental changes that are affecting us all. I think there's something about, as a citizen, we're flooded with information but can we distinguish the credible from the not credible, or the providers who are committed to ethical standards from those that are not? So, again, it seems to me that through a system where regulation has a value, that goes hand in hand with a commitment to the citizen, and the citizen can then use that choice. They may choose to access information and publications within the regulatory fold, or they may choose to go outside. That's their choice. But they need to know what's there. And I would defy anybody currently to be able to go to a newsstand, or go online, and identify who is inside and outside the regulatory fold. Who subscribes to standards and who doesn't. That doesn't mean that everybody outside the regulatory fold in the future wouldn't subscribe to standards. Clearly, bloggers may do, and they may have a whole separate constituency that they are trying to attract. But I think as well as embedding ethical standards, as well as serving the public interest, you have to serve the public, and enable the public to make informed choices. So to come back to the conclusions here, I have drawn distinctions between on that spectrum that I started with and my thinking is that there is something around that statutory recognition or a recognition of ethical commitments which is interesting. I don't believe that Ireland provides us with a straightforward blueprint, but I think there's something quite interesting, quite subtle actually, going on in that Act, that would be well worth exploring here. I know I said this earlier on, but the other thing that really came across to me very forcibly was the Press Council saying, all of them saying: the law is distinct from ethical regulation. And what ethical regulation provides is both less and more than the law. It provides more than the law in that the ethical standards you're obliged to commit to I think as you heard before from Hugh Tomlinson go further. You know, accuracy, dealing with bereaved families. They go beyond the law. But they're less than the law in terms of financial remedy. They offer a different sort of remedy, and it kept being brought home to me, this distinction between the two.
Q. And these considerations are leading you away, I think, from a system of mandatory regulation, at least as a tentative recommendation, but closer to a system of voluntary regulation, independent, but incentivised in some way, either by industry acceptance of ethical principles, which they would wish to adhere to, or it could be more crudely, I suppose, by a series of legal and commercial sticks and carrots, which might nudge or impel people in the right direction; is that a fair summary?
A. Yes and no. I wouldn't agree in the sense that incentives and compulsion both imply that you've got a reluctant media here that you're trying to draw in. I would rather say, if we can establish a framework that you want to be in, and that the most significant sanction could be to be either temporarily or even permanently suspended from, that's changing the rules of the game in terms of what regulation is about. And that's where, I thinks, there's a difference in terms of incentives. Because you're not cajoling. You are offering this in a platform-neutral way, as it were, to anybody would wants to sit within the regulatory fold. LORD JUSTICE LEVESON But isn't that rather semantic in the context of the world we are living in in this country?
A. Potentially, but I think every time we invoke Richard Desmond we have a fear of who will sit outside, and it just seems to me already, it's not just him who sits outside; there's a whole multitude of online providers, who only grow in significance, that sit outside. And the public should be enabled to make informed choices about where they go. So I just think built into the concept of incentives is this sort of enticement. LORD JUSTICE LEVESON Yes, but you need to achieve a critical mass. Once you lose the critical mass as they have in Canada, or so it appears, the whole thing just frazzles out, and somebody then has to do something that is more draconian. And the history of attempts to regulate, in whatever form it is so described in this country, has been: disaster, attempt, "We will try better;" disaster, attempt, "We will try better".
A. And in all of these countries exactly the same. But I suppose I just think there's something different about accepting that perhaps at the end of the day somebody will leave the regulatory field, but if there are real and material consequences to that for example for a larger provider, if the public interest test in terms of their wider media ownership were to take into account whether other aspects of their media delivery were part of the regulatory fold, that's a huge incentive, value whatever you want to call it to regulation. So yes, you're right. Of course it's sort of semantic in that, I think, as Hugh Tomlinson put it, you would be crazy not to be a member. That's the idea. But I think ultimately, if you're pushed to the extreme, you have to accept somebody might sit outside. And then it's for the public to make choices, and advertisers to make choices, about whether to engage with them, and different consequences to come into play in terms of ownership and plurality, and those fears that we have in terms of power and influence. MR JAY That's extremely helpful. Those are all the questions I had for you. It's an extremely detailed report of course that you provided. I sought only to draw out the key points. Obviously we've read it very carefully, and we would need four or five hours to do justice to the full text. LORD JUSTICE LEVESON Is there anything that you would like to add? You're not advocating that we need a judge involved in press regulatory regime in this country?
A. No. No. I simply pointed it up to say that that does exist elsewhere. LORD JUSTICE LEVESON Very early on, actually.
A. But independent majorities throughout the Press Council, I think, are very useful examples, in terms of the funding body you heard this morning being chaired by an independent member; the Code Committee potentially having independent members. You know, weaving in independence right throughout the organisation. I think there are some useful lessons overseas. LORD JUSTICE LEVESON One of the most interesting features that I pick up, which actually was brought out particularly by what Ofcom said the other day
A. Yes. LORD JUSTICE LEVESON was the difference between somewhere like Germany, where it's entirely the industry, as indeed it was at one stage here
A. Yes. LORD JUSTICE LEVESON but still called "regulation" and what Mr Richards said when he said that to have a regulator that was entirely or indeed at all staffed by those that are being regulated would be, I think his word was, "unimaginable" for Ofcom.
A. Yes. LORD JUSTICE LEVESON That's just an entirely different mindset.
A. It is, it is. I think that also followed in terms of your discussions about a code of conduct. You know, when Ofcom and I know this because I have been part of the process. When Ofcom is changing the Broadcasting Code, it publicly consults. The public is part of that process. Of course clearly industry is a very significant part of that process, but the idea that the code would be formulated in a closed room, by a small group of people, is unimaginable to Ofcom. So I think you could imagine a Code Committee that, say, had an independent majority which could tweak the code, because you want something that is flexible. But if you were going to change the code in any fundamental way, you widen the conversation. LORD JUSTICE LEVESON That's why I rather raised with Mr Tomlinson this idea, coping with Mr Richards' concern that even the Code Committee should have no serving editors on it, I ask to have an advisory board, or alternatively the idea that whatever they do, if they are the industry, then it has to be subject to the approval of the governing body, which is not a trade organisation.
A. Exactly. LORD JUSTICE LEVESON Does that work? Do either of those work?
A. Does it work in LORD JUSTICE LEVESON Does it work if you make it either advisory or you say it has to be the subject of approval by the main board?
A. Well, I think I think it's it's more a question of do you see is this an independent body with independence enshrined throughout, but drawing on industry experience? So you have industry voices there, and clearly you need that. But whether, for example, on a Code Committee you actually draw more widely on the industry. So when Ofcom consults, anybody within the industry can come back. LORD JUSTICE LEVESON I quite see the point about consulting widely.
A. Yes. LORD JUSTICE LEVESON I understand that. Indeed, for the purposes of the Inquiry, I have invited the public to contribute views, and they have done to an enormous extent.
A. Yes. LORD JUSTICE LEVESON But as a matter of structure, in preserving the relevant independence, I wouldn't want to lose the experience
A. Absolutely. LORD JUSTICE LEVESON which comes from those who are doing the job, without giving them a veto.
A. Absolutely. There was something else that Ed Richards and Colette Bowe said to you, I think, yesterday, which was basically, in terms of broadcasting, "If it ain't broke, don't fix it". They also, I noted, left the way open in terms of the future, that there may be developments in terms of broadcasting regulation and for how long that comprehensive statutory regulation of broadcasting right through the electronic programme guide, as it were, is sustainable. I just thought that was interesting in terms of just feeding into what you were asking or saying about convergence, that the outcome of this Inquiry might produce a structure which is aimed now at the press and online, but in future might be open to providers more broadly or some other providers. LORD JUSTICE LEVESON I think it's critical if you can do it. I have referred several times during the course of the last few months to the elephant in the room. Actually there are a fair number of different elephants, but this particular elephant is the Internet, and the access to the proliferation of views in a way which even ten years ago was inconceivable.
A. Yes. LORD JUSTICE LEVESON So what it's going to be like in ten years' time is equally inconceivable. I have enough problems about today though. Thank you very much indeed.
A. Thank you. LORD JUSTICE LEVESON Is that it? MR JAY Yes, until 10.00 am on Monday. LORD JUSTICE LEVESON I've got to congratulate those who have stayed the course. I'm pleased there are some people with stamina. MR JAY We have quite a heavy day on Monday. LORD JUSTICE LEVESON You mean we haven't today? Thank you very much indeed, Mr Jay. Thank you. Monday morning. (4.37 pm) (The hearing adjourned until Monday, 16 July 2012 at 10.00 am)


Gave a statement at the hearing on 13 July 2012 (PM)
Gave a statement at the hearing on 13 July 2012 (PM) ; and submitted 1 pieces of evidence


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