Leveson Inquiry

Morning Hearing on 16 July 2012

Dr Rowan Cruft , Professor Jennifer Hornsby , Professor Chris Megone , Professor Sue Mendus and Professor John Tasioulas gave statements at this hearing

Hearing Transcript

Monday, 16 July 2012 (10.00 am) LORD JUSTICE LEVESON On many occasions during this Inquiry, I have spoken about the public interest that drives and justifies the importance of free speech and a free press. Today the Inquiry will analyse these important concepts in some detail and will do so alongside other public interest concepts much talked about, including the public interest in individual self-determination and the protection of private interests such as privacy, confidentiality and individual freedom of expression. For the right balance to be achieved, it is important that we fully understand what is involved and what is potentially at stake. The Inquiry is occasionally criticised for considering ethical issues but it is also important to bear in mind that the terms of reference specifically refer to the culture, practices and ethics of the press, and I have always recognised that different press interests and different types of newspaper may well approach ethical considerations from different starting points. That brings into focus the role which might reasonably be expected to be played by a code of conduct in general and by the Editors' Code in particular, along with what, if anything is necessary, could be done to improve it and make it more effective. Tomorrow I will consider evidence in relation to the data protection legislation and issues of plurality. MR JAY Thank you. The first three witnesses today are professors Hornsby, Mendus and Tasioulas, please. LORD JUSTICE LEVESON Thank you very much indeed. PROFESSOR JENNIFER HORNSBY (affirmed) PROFESSOR SUSAN LESLEY MENDUS (affirmed) PROFESSOR JOHN TASIOULAS (affirmed) Questions by MR JAY MR JAY Professor Hornsby, you are professor of philosophy at Birkbeck College University of London; Professor Mendus, professor of political philosophy at the University of York; and Professor Tasioulas, professor of jurisprudence at UCL. Each of you has put in a submission, for which the Inquiry is grateful. That submission doesn't contain any fact, although we might debate about what that means, but as far as the opinions we can see in those submissions are set out, do you sincerely believe in those opinions? Sorry, that sounded rather cack-handed. LORD JUSTICE LEVESON It gets quite difficult. Thank you all very much for coming and for participating in this exercise. I hope you can see the value that I place on trying to understand how these competing interests should fit and whereas the newspaper men can speak about it from their perspective, I think it's also very important to put it in the context of the wider concepts with which you are very familiar. Thank you. MR JAY May I ask you, first of all, shortly, please, to set out your main areas of academic interest and research? First of all, Professor Hornsby. PROFESSOR HORNSBY: My main areas are philosophy of mind and language but I teach courses relating to issues about free speech, hate speech, pornography, in connection with gender and philosophy. MR JAY Thank you. Professor Mendus? PROFESSOR MENDUS: My main area of interest is modern political philosophy and I have specialised, over the past 25 years or so, in concepts of toleration. MR JAY Thank you. PROFESSOR TASIOULAS: My main areas of interest are in moral and legal philosophy and in recent years I've specialised in human rights punishment and issues about international law.
Q.First of all, please, may we establish a lexicon? We've heard terms indeed, have used terms such as rights, interests, freedoms, prejudicial, in the context of freedom of expression, free speech and a right to each of those, but Professor Tasioulas first of all, what are rights and how and why should we be distinguishing them from the other juridical and moral concepts I've just mentioned?
A.We need to distinguish them because typically in political and other forms of discourse they're supposed to carry a great deal of weight, and because they carry this great deal of weight, people are often eager rhetorically to present various arguments in terms of rights and that leads to a kind of proliferation of rights claims that threatens to debase the currency of rights language. So it's important to differentiate what a right is from other sorts of values or non-values, for example. So there may be an interest that someone may have in something and it may be quite an important interest maybe even, say, an interest in preserving their life but it doesn't follow that whatever would preserve their life is something they have the right to. They only have the right to that thing if somebody else is under a duty to deliver this thing. So a right will exist not just when I have an interest in something but when my personal interest has sufficient weight to impose a duty on others to act in certain ways and whether it imposes a duty on others will in part turn on what the costs would be to those other people of imposing that duty. But I think one of the systematic problems with discourse about rights generally is people move too readily from asserting there's an interest in a certain area to the claim that it therefore follows they have a right to that interest being fulfilled.
Q.So when one asserts a claim to a right, is there always a correlative duty? PROFESSOR TASIOULAS: It's possible that "rights" gets used in all sorts of different ways, but I think there's a kind of consensus, at least amongst philosophers, that the strict sense of a right is one that implies the existence of a duty and that's why the idea that violating someone's right is a moral wrong because it is a violation of a duty that bears on you, rather than simply some kind of reason that you might
Q.The law is very familiar with the difference between absolute and qualified rights, and of course in the European Convention of Human Rights, certain rights are absolute Article 2, Article 3 and certain rights are qualified Article 8, Article 10. But how does one determine whether a right is, on the one hand, absolute or, on the other hand, qualified? PROFESSOR TASIOULAS: Good question. It assumes that there are absolute rights and it's not clear to me that there are absolute rights. There might be some rights that we quite properly treat as absolute for legal purposes. So, for example, it might be that there are very compelling reasons for treating the right not to be tortured as an absolute right for legal purposes, even though morally we might concede that even that right there may be situations where it could be overridden by competing considerations but you wouldn't want that to be embodied in law. So that raises this much more sort of background issue that even getting the morality of free speech rights at an abstract level is one thing. How this gets implemented in law is another thing. But going back to your question, you distinguish the absolute rights by the question: are there some rights the duties generated by those rights can never be overridden by any competing consideration? So someone who says that the right not to be tortured is an absolute right, the duty that you have not to torture arising from that right could never, under any circumstances, be defeated by any other consideration. LORD JUSTICE LEVESON You say that's legal. That's the famous example of the terrorist who knows where the bomb is that will destroy the railway station and 2,000 people and that's the philosophical issue. PROFESSOR TASIOULAS: That's the philosophical issue. I would want to distinguish two questions. One is whether, as a matter of morality, the right not to be tortured is absolute, and the second question is an institutional question, whether we should have absolute rights in law. There might be good reasons for the law to present these rights as absolute and then to deal with cases as they come up, because if the law says, "Look, it's not an absolute right", you have to look at the consequences of that, and amongst the consequences would be a tendency for people then to abuse that thought and then to engage in torture in cases where it's absolutely not justified in any way, assuming it's ever justified. MR JAY Thank you. May I move on to is the first main topic: free speech in a mature democracy, as distinct from freedom of the press. Is there a right to individual free speech or freedom of expression, first of all, Professor Hornsby? PROFESSOR HORNSBY: Yes, I think there is such a right which accrues to individuals as autonomous citizens but I think that in understanding why a right to free speech should be accorded to people in a democracy, one needs to see beyond the questions of individual autonomy and to understand that in a democracy, people need to be informed, as voters whose will is supposed to be implemented by governments, and they can't be informed and make up their own minds unless speech, which is communicative and thus informative, is free.
Q.Thank you. Professor Mendus, do you agree with that or would you like to expand on that at all? PROFESSOR MENDUS: I certainly agree with that. It's very often said that the importance of free speech for individuals is, as has been said, for the development of autonomy, so that people shall be in a position to act in a way which they themselves believe to be correct and they can only do that if they have information. The move from the right to be informed or an interest in being informed in a democracy and an extensive free speech or free press commitment is quite a difficult one. So it doesn't follow directly from commitment to autonomy and to being informed in a democracy that there should therefore be very extensive free speech, much less that there should be no limits on free speech or free communication.
Q.Thank you. It may be implicit in what's been said already but is the right to individual free speech an absolute right or a qualified right, Professor Tasioulas, first of all? PROFESSOR TASIOULAS: If you mean by "an absolute right" a right that can never be overridden by competing considerations under any circumstances, which is how I characterised it earlier, then I would say that it's not an absolute right. But I think that's the less interesting question. I think the more interesting question is: how do we specify what that's a right to, ie, how do we specify the duties generated by that right? In order to specify those duties, we need to take into account a series of considerations. So I think it would be wrong so it's qualified in this sense: my right to spree speech does not extend as far as my interest in free speech. It might serve my interest in free speech to get all the leading philosophers to listen to my theories about free speech, but they have no duty to do that so my interest goes beyond any right that I have, and so I have to think about, insofar as I have this interest, to what extent this will impose duties on others, and taking that into account determining that question will take into account things like: well, what burden will it impose upon others who have to listen to me giving my philosophical views about those things. LORD JUSTICE LEVESON But quite apart from the burden on others, isn't there also a question about the qualification to the right to free speech? The example I have to keep this grounded in examples otherwise you're going to lose me is shouting "fire" in a crowded theatre. Would that be an example? PROFESSOR TASIOULAS: That's right. The question is: could my interest in shouting "fire" in a crowded theatre generate a duty on anyone else to let me shout and not to interfere with me doing that and not to punish me for doing that, and the answer is: clearly not. So to specify the content of the right, the duties it involves, I have to think about what benefit I would get and what cost it would impose upon others. LORD JUSTICE LEVESON If any of you want to come in at any time, don't feel driven by the questions. The purpose of having the number of you together is to encourage the debate between you because you know far more about the topic certainly than I do I won't speak for Mr Jay because that would interfere with his right but I'm very keen that I generate the discussion between you to try and distill what I can from your views and the slightly different windows you put upon the issue. PROFESSOR HORNSBY: Can I say something about the qualification of the right? This is often thought of in connection with "fire" in a crowded theatre and John Stuart Mill had inciting a riot against the corn dealers or whatever so positive harm coming from a piece of speech but it does seem to me that we know from what the European Convention says that there must be other qualifications. So the Racial and Religious Hatred Act in this country and the Criminal Justice and Immigration Act it seems to me quite proper that they're in place and that they do impose restrictions on free speech and expression. I think when one hears the term "free speech", one thinks of that which is heard in the marketplace of ideas, but of course it's usually thought free speech and expression, so people should be allowed to sound off, they're expressing their opinions, but it does seem to me there are qualifications to that because of the harm to groups of people, not a direct effect, as in the case of a crowded theatre or the riot, but an effect on individuals who are caused to feel hatred and groups who are vilified by pieces of speech. MR JAY When we speak, even in this qualified way, to a right to individual free speech and taking on board the difference between rights and interest may it be more helpful to talk not in terms of correlative duties but rather in terms of the state not having a right to interfere with individual rights unless there is a good justification capable of being advanced? Can I ask each of you to comment on that possible formulation? PROFESSOR MENDUS: Could I comment on that? I wouldn't myself phrase the debate quite so clearly in terms of rights and duties. That's just a personal preference. That's not the way I personally would approach it, but I guess we're here, to some extent, to try to understand why free speech is important and what its importance is. Now, there are any number of accounts of the importance of free speech. One claim it's been alluded to already is the claim: well, free speech, Mill seems to think, will deliver truth in the free marketplace of ideas. So he seems to think the world is like a huge seminar room: everybody says the thing that they want to say and sooner or later, truth comes out. Now, that defence of free speech strikes me as very, very limited indeed, partly because there are significant power interests in modern democracies, so it just isn't the case that my speech is heard as well as the speech of people who own vast areas of the press, also because it isn't clear anyway that freedom of speech will deliver truth even in a free marketplace of ideas, where there's rough equality of power. I cited in the evidence I gave a book by Bernard Williams called "Truth and Truthfulness", in which he says: if you look at those institutions which are most closely associated with trying to discover truth, like courts of law and universities, what you'll find is that there are very considerable restrictions on freedom of speech. I don't, in my seminar, allow my students to heckle one another or to shout offensive remarks at one another. That's not legitimate. So in fact, the pursuit of truth is something which calls for restriction of free speech just as much as it calls for free speech. So that argument seems to me slack. There's an argument in terms of autonomy, which we've mentioned already, and then an argument in terms of democracy, which has also been touched upon, but what we need to think about here, if we're arguing or trying to consider the importance of free speech, is: what is free speech for? Why do people want it? I think there are different answers to that, depending on whether you're looking at the individual or the press, press freedom as opposed to individual freedom.
Q.May we move into the topic now of press freedom? LORD JUSTICE LEVESON Let's just then, as you're about to do that, just develop that a bit more and try and distinguish between the two, if you can. PROFESSOR MENDUS: I don't know if this is what Jennifer was referring to, but my thought is my free speech is just the speech to say what I think to the world. I just announce my I'm not really interested, necessarily, in whether anybody's listening. But if you're talking about freedom of the press, the press actually are trying, at least on the surface, to communicate. They're not just expressing their view. They have a persuasive, informative dimension to their work too, and that's very different. But maybe that's not what you're thinking? PROFESSOR HORNSBY: Yes. I mean, speech has an expressive dimension and it can when it's in print as well as when it's spoken, though it more readily is expressive, for instance, of hatred when it's spoken. If I could just say, I was trying to distinguish speech que communicative of beliefs and perhaps knowledge and this expressive function and I think when one thinks, as Mill did, about free speech, one thinks not of its expressive functions specifically. But I have to agree that I think Mill was extraordinarily optimistic in thinking free speech is conducive to truth all round, but I think there's a conception of speech such that the hope is that via free speech, truth will be reached. But there's more to speech than that.
Q.Can we move to the related but distinct area of press freedom. Does individual freedom of expression imply press freedom? If not, why not? And if so, are the two concepts coterminous? If not, why not and to what extent aren't they? Can I ask, first of all, Professor Hornsby to deal with that conglomeration of points. PROFESSOR HORNSBY: There were a considerable number and I haven't written them all down. It seems to me that individual freedom of expression of course accrues to journalists. I don't think freedom of the press could possibly be coterminous with individual free expression because I think the public has an interest in the freedom of the press, which has nothing to do in particular with freedom of speech, and if one thinks that free speech is, as it were, beneficial that's to say, in a democracy there's a positive reason to promote it then it may be that one needs specifically to recognise the freedom of speech of the press as opposed to individuals, and it may even be that the press has a duty, to use John's word, to ensure that individual freedom of speech is promoted.
Q.Professor Tasioulas, what's your take on that? PROFESSOR TASIOULAS: I think there's always been a tendency to think of press freedom under the rubric of individual freedom of expression or communication. I think that's probably a mistake. The sort of reason that Professor Hornsby gave the subjects are different. In the one case, you're talking about an individual with their particular sorts of interests; in the other case, you're talking about institutional structures. Now, of course, it may be that the individual interest in expression gets fulfilled in part from certain sorts of institutional structures the press and that the press should be shaped accordingly, but there's a lot more going on in the context of freedom of the press. Think about the underlying interests. The underlying interests wouldn't necessarily be interests in expression only, but they would be interested in things like the way in which a press can help curb abuses of power by government or the role that it plays in a democracy, et cetera, et cetera. So it's the institutional character of the press that makes it the case that you can't simply go from thoughts about individual interests and expression to claims about freedom of the press. It's a kind of different topic, although overlapping.
Q.Is that your view? PROFESSOR MENDUS: Yes, I would agree with that entirely, and I think if we don't hold onto that distinction, then there is very serious danger of endorsing in two areas different items which ought to be treated differently. I think that is very, very important distinction.
Q.There are certain other issues which the Inquiry has touched on over it's sort of 95 days to date. Can I ask you, please, to address those? The first is the press use of the megaphone, as we've liked to describe it, the consequence of press power, that we're not talking about one voice, and to the extent to which we are, in relation to any one organ of the press, it's an extremely loud voice cf our individual voices. Do you think there's any deeper analysis one could make of the megaphone point than that which we've attempted thus far? Professor Hornsby, first of all. PROFESSOR HORNSBY: It means that publications in the press are peculiarly vulnerable to promoting stereotypes, because it's what's heard is widely heard. If it's assumed that a member of a group is portrayed as a typical member of that group, then attitudes at large towards the group will be affected. I'm thinking specifically of what's said in some of the evidence submitted by Equality Now, Object, Eaves, which represent I don't read the newspapers that they analyse but represent that stereotypical views of women are portrayed in the press, and they're certainly detrimental to women. PROFESSOR MENDUS: I wonder if it's worth noting that part of one of the consequences of the megaphone effect is to take up a limited amount of space and time with a certain sort of view or position. To give an example, it seems to me that the more time that is spent, let's say, presenting a stereotypical view of women, or presenting "information" about who paid for the duck house, the less space is available for discussion of wider and more important political issues. So the megaphone effect takes up space and crowds out more important what seem to me to be more important issues. It's not a limitless resource. LORD JUSTICE LEVESON That begs the question what an important issue is. PROFESSOR MENDUS: I hesitated, and that's the reason, but I don't have the argument now, but I put it to you that questions about the euro, about Afghanistan are more important and more deserving of space in newspapers than questions about who cleaned the duck house and for what sum of money, but I absolutely take your point that there is that raises the question: who decides what's more important? LORD JUSTICE LEVESON And the press are very firmly of the view that that's exactly what they do, and the fact that some people may think it's more important to discuss one thing as opposed to another is neither here nor there. They must reserve the right to do it themselves and if they want to be offensive, they must reserve the right to be able to be offensive too, and that's what their free speech rights are. PROFESSOR MENDUS: Yes, absolutely, and I think there are a number of things to say there. One is that in doing that they need perhaps to think about the extent to which they report upon the news and the extent to which they make it. PROFESSOR TASIOULAS: Another thing to say is that there is an asymmetry between the individual case and the case of the press. One of the reasons we tolerate the fairly broad-ranging right of individual expression is that individual's remarks are typically limited in their impact, if it's one individual making some offensive remarks. But as has already been pointed out, this megaphone effect is a kind of culture-shaping effect, so it can't be equated with the speech of an ordinary individual. It exerts much greater influence and power on people, how they're perceived by others, creating stereotypes or creating certain assumptions in society, and for that reason this institutional consideration makes it the case of greater institution power. There might be limitations on that form of expression that don't apply in the individual case. LORD JUSTICE LEVESON Yes. Once you get into talking about limitations, then all sorts of press interests will talk about muzzling their freedom. PROFESSOR TASIOULAS: But anyone who believes in free speech presumably also believes that there are limits to things like: you can't defame other people. LORD JUSTICE LEVESON Oh yes. PROFESSOR TASIOULAS: So no one is credibly going to say any restriction on freedom of expression in itself constitutes some kind of unacceptable muzzling. So the question then becomes, in a kind of piecemeal approach careful piecemeal approach, when you start to identify certain forms of restriction: what case can be made for them? But the mere fact that it's a restriction doesn't of itself show that it's a mistake, because we already accept the need for a series of restrictions. PROFESSOR HORNSBY: Can I make a comment on this question of importance and whether the press is focusing on that? You suggested, I think, that it was, as it were, a subjective matter. Who is to say what's important? But I think the megaphone effect does raise a question about importance, which isn't simply one that's a subjective matter. Imagine that there's some crime that we're all concerned with which is committed once a week but it's low level, it doesn't get an enormous amount of press attention. Then one week in five years the victim is a celebrity and we all hear about it. So we're suddenly focused on concern with this person but no interest is shown in the 500 other victims, as it were. So I think that the megaphone effect can make us think about the issue of the day and forget about issues which pervade life but don't get reported. LORD JUSTICE LEVESON There are lots of parallels or examples of that very point in the context of what I've been considering. PROFESSOR HORNSBY: Good. LORD JUSTICE LEVESON Well, particularly in relation to interception of communications, phone hacking. PROFESSOR HORNSBY: Mm-hm. MR JAY One can identify clear and distinct areas where restrictions are legitimate. Defamation has been mentioned. Criminal law in relation to hate crimes, that has also been mentioned. But is it a sound working presumption that unless a good justification could be advanced for imposing a restriction, the free market in terms of the freedom of the press should otherwise exist? Professor Tasioulas, first of all. PROFESSOR TASIOULAS: I think that's, as a presumption, probably correct. I'm not sure about using the word "free market", but in general, as a way for the state to proceed, it does seem to be correct that if it's contemplating any kind of measure that restricts people's freedom, then the question is: what justifies restricting that freedom? But there is a caveat, and that is that not all forms of freedom are valuable. Some forms of freedom are valuable in the sense they generate rights; other freedoms are valuable in the sense it's just a worthwhile thing to be able to have the freedom to do something, but not every restriction of people being able to do what they want is a restriction of something that's valuable. If you think about laws against murder, you're restricting people's freedom, but the freedom to murder is in no sense valuable to anyone.
Q.Professor Mendus?
A.Again, there's a very great tenancy in the world to think of freedom as an unalloyed good. So once the word "freedom" comes in, we all put our hands up and vote for it. That's a mistake for reasons that have been given more than once, but beyond that, it seems to me we need to ask why we're interested in having a free press. What's the value of a free press? Having answered that question, we then need so ask ourselves: is a free market the way that is most likely to deliver whatever value it is that we value in the free press? So, I mean, in true philosophical fashion, I'm not answering your question; I'm moving around it. But we do need to know: why is a free press such a good thing? LORD JUSTICE LEVESON I'm very comfortable for you to formulate the questions that you think the answers to which will assist me. PROFESSOR MENDUS: Okay, this is the question. I always tell students they mustn't do that. I always say you must answer the question, not the question you wish you'd been asked. LORD JUSTICE LEVESON I'm very conscious, Professor, that this takes me back 40-odd years to a jurisprudential tutorial and I'm very concerned about it because I'm bothered about only getting a beta plus. So I'd better keep myself quite quiet and allow you to develop the ideas. PROFESSOR MENDUS: Okay. That's where I think difficulty where confusion arise or can arise quite dramatically: the move from the free press to the free market. These are quite different things, so we need to think what's the value of the free press, why is it important to have a free press. Then we need to ask: is the free market the best way to deliver that? Now, suppose the answer is no and I think it is no. It doesn't follow that we should therefore abandon the free market. The free market might be important for all sorts of other reasons, but not for the instrumental reason that it delivers the aims the main aims and objectives of a free press.
Q.Professor Hornsby? PROFESSOR HORNSBY: I think it's extraordinarily important to distinguish between the free market, in which capitalists all believe and if it's restricted it's by competition law, and a free market and ideas, and in I agree that the free market isn't conducive to the best sort of press and that's because it would seem that in a free market the press does not participate in a free market in ideas. I think we've seen that. Financial power ensures that one sort of idea is more likely to be promoted in the newspapers people read than another sort of idea. So it does seem to me that if one's thinking of regulating how much ownership there is of one or another portion of the press, it really shouldn't be a question just of competition law. PROFESSOR TASIOULAS: Can I make a point about the free market point and that's that it's dangerous to think of the free market as a law of the jungle situation. A free market can only exist if certain fairly stringent conditions are satisfied: conditions like people having roughly equivalent knowledge, the enforceability of laws relating to contract and property, and even more broadly, probably, a certain kind of ethos or culture, a certain kind of moral understanding of the people engaged in these negotiations which, if it breaks down, can lead to disastrous effects. So it's not as if merely talking about the free market and I agree there might be serious issues about thinking about free speech in terms of the free market. Free market itself, properly understood, requires a whole lot of restrictions to be in place in order to function. MR JAY The public interest in a free press I'm sure we can all agree that there's an interest in the press as a disseminator or communicator of information it serves as a bulwark against tyranny and holds power to account but why isn't there a public interest in the free press operating as a source of entertainment for two reasons: that entertainment accords a direct benefit it makes people happy and secondly, an indirect benefit, that the happy people will be buying more of the newspaper which supplies their happiness and enables that newspaper to continue to thrive, because otherwise that newspaper may go to the wall? Is it possible that not sufficient weight or focus is being directed to this entertainment function, if I can so characterise it? First of all, Professor Hornsby. PROFESSOR HORNSBY: Oh, I'm sure it's fine that the press should entertain. There's a question how it should entertain and whether one has concerns which ensure that certain modes of entertainment have other effects than entertaining. But I do the crossword every day. It's entertainment. I realise you're thinking of other species of entertainment, but fine. People buy a daily newspaper or look online at one. LORD JUSTICE LEVESON But is the issue then that one has to be careful about whether, in entertaining, one is impacting adversely upon the legitimate rights of others? Whereas your crossword example wouldn't. PROFESSOR HORNSBY: Sure, sure. No, indeed, and I qualified of course LORD JUSTICE LEVESON No, no, I wasn't suggesting otherwise. PROFESSOR HORNSBY: Yes, that surely is the issue. Once one's acknowledged that entertainment can be a function, one has to take examples and see what the effects are of things which purport to entertain are doing besides possibly entertaining. PROFESSOR MENDUS: I have nothing against entertainment, but I think we need to think quite carefully here because about the sort of entertainment we're considering, because and it's a second danger, it seems to me, in thinking about press freedom where the press provide, on a daily basis and in a blanket form, entertainment which takes the form of exposure of details of people's private lives, that could have very serious implications for democracy, and I think some of it has been seen here in this very room. The danger, it seems to me, is if we live in a society where anybody who is a public figure or politician must thereby expect to have their whole private life exposed to public scrutiny, you may find that the wrong kinds of people are only the wrong kinds of people will be willing to become politicians or public servants. MR JAY Or at least some of the right types of people will be warded off. PROFESSOR MENDUS: Quite a lot of the right types of people will feel that if the price is that the medical records of their small children are to be displayed across the whole country, that's too high a price. PROFESSOR TASIOULAS: I think it's hugely important to emphasise that entertainment is something in the public interest, that it is a collective public good. That's its importance, and you identified, I think, two aspects of that. One is just the intrinsic value of people being entertained, but then we have to really interrogate that question and say: well, you know, what are the legitimate sources of entertainment? What really is something that adds value to my life by getting entertained by it? We would normally think that people sort of taking pleasure in the humiliation of others or the privacy of others being invaded is not something that enhances their lives. Whether or not they think it does is a different matter, but whether something makes your life better is an objective question; it's not down to whether you think it does. The second argument, the instrumental argument, that by entertaining people you maintain a certain industry and it creates jobs and wealth again, we think that there are limitations to what you can do to generate income, to generate wealth, and amongst these limitations are, very minimum, that you can't generate income by taking someone else's property, for example, but nor can you generate income by systematic invasions of someone else's privacy. So both of those points are valid, but they're compatible with the restrictions.
Q.Is it possible to say that the public interest in a free press is stronger when one's dealing with issues such as bulwark against tyranny than it is when one is dealing with issues such as entertainment? In other words, in relation to the latter, it'll be easier to find other private interests which will be violated or capable of being violated, but more difficult to find those in relation to our bulwark against tyranny justification? Is that a useful analysis or is it hopeless? PROFESSOR MENDUS: I think it is a useful analysis. It goes back to the question: why do we think it important to have a free press? We think it important to have a free press because a free press will, in many contexts, be our, the people's, bulwark against tyranny. The press will inform us of those things which government might not wish us to know about, and that's very important if we are to be fully informed, democratic citizens of a democratic society. Of course, it doesn't follow that that's the only thing that the press should do, nor does it follow, actually, that if the press only did that, it would be as effective a bulwark against tyranny as it is if it also provides entertainment. People might buy newspapers for crosswords, for Sudoku, for news about what's on television and become informed about important government matters in the meantime. So actually the provision of entertainment is itself very important as part of a route to informing citizens.
Q.Anything you want to add to that? PROFESSOR TASIOULAS: I think I agree with that, but the question is: how do you operationalise the idea of bulwark against tyranny? I mean, you could be claiming to be operating as a bulwark against tyranny. I think the most you can say is: well, when the press is dealing with certain types of issues, there might be a greater case for non-interference for example, political issues than issues to do with celebrity and popular culture in some ways. But it's not clear to me.
Q.I move on to the concept of an ethical press and try and approach it from this angle: that the law imposes constraints on free speech, both as regards individual and press organisations but within the law, private individuals exercising freedom of expression are at liberty to speak ethically or to apply no ethical code to themselves whatsoever. It's a matter of personal choice. So the law creates considerable space for individuals to define their own morality or lack of it. But should the position be the same for the press, which, after all, is not an individual but a commercial person? Can I ask maybe Professor Tasioulas to address that one first, please. PROFESSOR TASIOULAS: I'm not sure that I buy into the contrast that you're drawing
Q.Okay. PROFESSOR TASIOULAS: that's assumed there, because it seems to me that the law in many ways tries to shape people to have at least morally decent characters. For example, through the education system, through the various sorts of rules and requirements about public interaction and offensive behaviour and so forth. So I think one thing might be you might have laws that, in effect, enforce a certain kind of behaviour, but there may also be laws the rationale of which is to create certain kinds of attitudes, to foster a certain kind of ethos, and I think you already have that outside of the press context. So it wouldn't be some sort of thought that: well, this doesn't exist in the press context; should we introduce this in the press context? I think this is a kind of legitimate function of law, to shape people to be certain kinds of decent, law-abiding individuals who have the virtue of civility, we can broadly call it. That's a legitimate purpose of law, one that law constantly, I think, engages in with respect to individuals and there could be a parallel argument about the particular issue of regulation of the press. LORD JUSTICE LEVESON Is there a point here about the extent to which it's noticed? If most people are merely exercising their right of free speech in the pub or elsewhere, that's one thing, but and it's not noticed. Therefore nobody does anything about it and one could take your education in an attempt to improve the thing as a matter of generality rather than specifically. But if you do it well, there's a present case going through the Divisional Court at the moment on Twitter, about the gentleman who said that he would blow up an airport, or if you do it on a football field, which is another very recent example, it is noticed and therefore more likely to generate concern or interest. Is that a fair point? PROFESSOR TASIOULAS: I think it is a fair point. That's right. The impact of a certain kind of speech is relevant both in the individual case and the institutional case. Whether something's liable to be noticed, what effects it's liable to have on other people's perceptions must be very relevant. MR JAY Professor Mendus? PROFESSOR MENDUS: The question of impact I think is also the case you mention is not simply a matter of a wider audience and impact but also of the sort of esteem in which certain people are held. So if Fred in the pub makes a comment, nobody will notice, but nobody probably pays a lot of attention to Fred's opinions anyway. If someone in a position of moral or political authority makes a statement about race or about gender, it isn't simply that there will be a wider audience for that but also that the opinion comes with a greater degree of with an imprimatur, or seems to, and that itself is problematic. That's why positions of responsibility in society are very difficult, because you have to take a lot of care about what you say because people pay attention to it. PROFESSOR HORNSBY: Can I just say something about your question?
Q.Yes. PROFESSOR HORNSBY: You wanted to know whether we would distinguish between press ethics and individual ethics, and when you spoke of the individual, you talked about morality and people can define their own morality. It does seem to me important to make a distinction between morality and ethics, and in the case of the press, one might ask individual journalists what their moral opinions are but if one is to see the press as an institution with a role in civil life, then questions of its ethics and its culture aren't questions of morality narrowly construed.
Q.Well, that's an important distinction, but can I just ask you to elaborate on that? What precisely is the difference between minority and ethics? PROFESSOR HORNSBY: Well, there's a view which I think in this country has been held since 1960 that what people do in private is up to them. That's a question of their morality; it's not a question for the law. And that could be true, but that doesn't mean that if a consideration is ethical, it's up to an individual. So I'm suggesting that when one introduces the idea of morality, one is thinking of people on their own, but when one turns to questions of ethics and in particular ethics of the press, which is an institution one is actually just not concerned with bits of individual behaviour and what someone might do in private; one is concerned with questions of culture, which the press surely influence. So I'm talking now not about the culture of the press but the culture in which the press participates and the kind of culture which it might be that organs of the press promote.
Q.Thank you. That's helpful. Can I ask you, please: what are the ethical duties on the press, if any? If you don't like the term "duty", we can substitute for it "responsibility". Professor Tasioulas? LORD JUSTICE LEVESON They may be different questions, duties and responsibilities. PROFESSOR TASIOULAS: Right. There are interesting questions about what the difference might be, but I'm happy to go with duties. Duties I take to be particularly sort of compelling reasons which, if you violate, either you should certainly feel guilty about and others should be legitimate in blaming you or sanctioning you in some way. I think that pretty much all the duties that ordinary human beings have apply to the press, and then, in addition to that, extra duties arising from the special institutional role, in particular the power that they possess. So they have extra duties to be careful about images they portray of people and so forth, precisely because, one, the point about it gets noticed, but two, as Sue said, it has a certain kind of imprimatur, because it is a certain kind of position in society to be the press. It comes with a certain kind of authority. So I think the idea that somehow there's this notion of legal regulation and then ethical sorts of considerations are somehow optional or foreign just seems extra, Inc. to me. The way we should think about the law is trying to implement a certain kind of minimum, at least, of ethical standards, and we may have then further reasons to implement even higher ethical standards, although the law, being a blunt instrument, might not necessarily be the best way of going about it but might try to help to do that sort of thing. But there is this kind of squeamishness about words like "morality" and "ethics" which I think we should resist. Morality, as I understand it, is basically about the fact that we have reasons to care about and respect other people. They're quite fundamental reasons that extend from reasons not to torture them to reasons that help them out and assist them when they're in dire need, for example. That's what morality's about. The way we should understand the law is trying to give some kind of institutional force to at least some of these moral requirements.
Q.Professor Mendus? PROFESSOR MENDUS: It seems to me that I don't mind in this context whether we use the word "duties" or the word "responsibilities", but it seems that the duties or responsibilities of the press follow straightforwardly from the reasons that we have for wanting a free press. So if one of the main reasons for wanting a free press is that we be fully informed as citizens, then there are responsibilities on the press to be accurate, honest, open and accountable. I think there are also responsibilities and this is something on which Onora O'Neill has written very eloquently to make declarations of their own financial and other interests so that we are not left, as a citizenry, under any doubt about the financial interests which lie behind the reporting financial or other interests which lie behind the reporting of any particular story. PROFESSOR HORNSBY: Yes, I want to mention the press' special responsibility or duty in respect of legislation, all of it relatively recent, which enshrines a right to equal treatment. So it's legislation under the broad head of anti-discrimination. It seems to me that the press given there's such legislation, the press must have a special role in ensuring equal treatment, so that, for instance, it has an obligation when reporting a story not to make needlessly pejorative reference to a group. Where it's irrelevant to the story, the fact that someone's a member of a certain group shouldn't be mentioned, and so on. So that's a case where I think the press has a special responsibility, whereas if one is telling one's mate about the story, it doesn't matter nearly so much that one should offend against the principle of non-pejorative reference.
Q.I think it may matter, but not to the same extent in an individual context? PROFESSOR HORNSBY: Not matter so much, yes. PROFESSOR MENDUS: And presumably in that case it reflects on one's own character, so to speak, but it has very little wider I mean, it tells me that certain people aren't the kind of people I'd like to have dinner with, but it has very little wider influence, whereas if we're thinking about the press, then it would have a much wider impact. PROFESSOR HORNSBY: Yes, I'm thinking that the legislation would certainly not prevent someone saying to his mate something which ensured that pejorative reference was made to a group, and it would we'd be extraordinarily restricted if there was legislation which prevented that. Nonetheless, when the press is reporting a story, it should not make pejorative references. That's the distinction I'm trying to make. And that's by verdict of I mean, one can justify that by reference to the legislation. LORD JUSTICE LEVESON So there are different rules, if I can use that word with some caution, that should apply to those that are responsible for publishing newspapers than to those who are responsible only for what emanates from their own mouth or their own pen? PROFESSOR HORNSBY: Yes. Yes. I mean, there are so many contexts in which speech is used. Professor Mendus has referred to the seminar room, and there I take it that an academic will ensure that no student is vilified by virtue of their being a member of a group and they have a responsibility so to do. But the press, I take it, in general their words appear in print has a special responsibility. MR JAY Can I try and pick up PROFESSOR MENDUS: I would agree with that. I have nothing to add. That seems right.
Q.Can I try to pick up one theme which has run through this Inquiry, that's the rights to privacy and the relevance of personal morality as opposed to personal ethics. Some people would say that it is relevant, if we have a politician, to know whether he or she is indulging in personal immorality, by which I mean usually adultery. Some would say it's not relevant because matters of that sort, either in practice or in theory, can't impinge on the way that person carry out their public functions. What is the correct ethical approach to that question? And perhaps as a follow-up question: if there is room for two competing views, why should an ethical code differentiate between them or rather judge between them? Why shouldn't it be left to the individual discretion of the editor? Maybe Professor Tasioulas first on that question. PROFESSOR TASIOULAS: It's a difficult question. I think you could come to certain questions we think both answers are legitimate answers. You could have a situation where when one society would say, "The way we're going to understand privacy is pretty deep going and it excludes people prying into things like politicians having affairs." Other societies may say, "But look, there are these other countervailing reasons. What about someone who is a moral crusading politician, who's built his reputation on certain kinds of ideas about personal morality? Shouldn't we be able to expose him as a hypocrite?" I'm not saying this is one such case, but this might be such a case where you think that the abstract right to privacy doesn't actually dictate an answer, and in a way we have two, in principle, eligible alternatives, and what we might then do is say that but we need to have something to operate on. It's not clear that we want to leave this to the discretion of editors. We need to have some kind of understanding of where the right to privacy goes to, how far it extends, but we recognise that we make that decision now in the light of certain wider public interest sorts of issues, as opposed to the basis on which an editor presumably might be inclined make the decision, which is about issues about profitability and so forth. So what are the wider issues? Issues like: well, if we did have if we didn't protect the privacy of politicians in this regard, would this have a chilling effect on the sort of people who go into politics, for example? Would it encourage a certain kind of prurient interest more generally that we want to discourage? Those are the sorts of consequential effects one would have to look at. But it would be premised on the thought that either way I mean, I feel this about American free speech. American free speech is often far more expansive, the rights that it confers, than rights in most European legal systems, but that's okay; there might be legitimate reasons for having this variation.
Q.Professor Mendus? PROFESSOR MENDUS: I used to think that personal immorality mattered a lot, and now I think it doesn't matter so much, or that it's dangerous to let it matter, and the reasons have been alluded to already. It depends in some part, I think, how much we believe a person's character is of a piece, and how much we think that the kind of job you do in the office is separated from your personality more widely. In some cases, it's been in what's called virtue ethics, the thought has been that a person's character is of a piece, so if a person is morally disreputable in private life, then there's every chance that he or she will be disreputable more widely. So the question that's often put is: if this politician cheats on his wife, why would we think that he's not going to cheat on us, the public? I used to be quite persuaded by that argument but I'm not persuaded by that argument so much any more. I'm not persuaded for two reasons. One is just the historical evidence, which is that there are huge numbers possibly the majority of very, very good statesmen, politicians, who were philanderers of one sort or another and they were, as a matter of fact, extremely good at their job but not terribly good to their partner. So there's that evidence. But the second and more powerful philosophical consideration is that to the extent that we start to investigate the private lives of politicians or public figures more generally, we may find that we are creating a world in which only the most brazen and shameless are prepared to go into politics at all, or public life at all, and that can't be right. So I now feel that we should try to retain a distance between personal morality and public duty. Though there are specific cases where I think this is a problematic position, and I think particularly of the Clarence Thomas/Anita Hill case, where there were questions about whether it was appropriate that a man who apparently was a sexual harasser should hold a position of great authority in which he was called upon to exercise extensive judgment, and I think that is a very, very tough call. PROFESSOR HORNSBY: Yes, I'm inclined to think that people's morality, whoever they are, whether public officials or not, is a private matter and protected as private. But I also think that there are things individuals can do which put their right to privacy in jeopardy, so for instance by ensuring that one is much exposed to the press and one's life is laid open, perhaps for the entertainment of others. One shouldn't then be at liberty to conceal such aspects of one's life as one suddenly cares to. Suddenly this is private. Again and this connects with questions about public officials it seems that if someone is a representative because they've been voted for by the electorate and they've stated certain views, then if their personal morality is contrary to those views, people deserve to know, and it may be that what would otherwise be a private matter then needs to be exposed. So I think privacy is important even for public officials, but public officials and others can put their right to privacy in jeopardy. LORD JUSTICE LEVESON But simple exposure to the press may not be sufficient, may it? If I take the example of a famous person who is famous only because of what he or she does, be it as an actor or a writer or a football player, without in any sense seeking to obtain benefit from image rights. Why shouldn't such a person say, "Well, simply because I've made money writing a book or acting in a film or playing football well should not be sufficient to expose any aspect of my private life"? PROFESSOR HORNSBY: Yes. I think one's private life is put in jeopardy only by voluntary acts which ensure that one's in the public gaze in ways that one otherwise wouldn't be. People who earn large sums of money, whether because they play football are not, are likely to be in the public gaze, but so long as they haven't voluntarily done anything which ensures that they should be, they've done nothing to ensure LORD JUSTICE LEVESON But they have voluntarily, because they've joined the football club. Do you mean they've not voluntarily done something to put their private lives into the public domain or do you mean rather more than that? PROFESSOR HORNSBY: I mean that they haven't tried to bring it about, for instance, that they earn money by virtue of public exposure. They haven't stated opinions which LORD JUSTICE LEVESON But simply being of interest to the public because you've made a lot of money, whatever you've done, is not sufficient in your view? Am I understanding it? PROFESSOR HORNSBY: In my view, it's not sufficient. PROFESSOR MENDUS: Personally I agree. I don't think it's sufficient, but I think people who do earn a lot of money and are in the public view have to recognise that that is a danger. I don't think it's legitimate. I very much agree. I don't think it's legitimate to intrude in that way, but I think it goes with the territory, as they say. LORD JUSTICE LEVESON Well, yes. The question then arises and I don't want to take Mr Jay out of order as to how one tries to moderate or mediate into that situation and whether it's simply a question for the editor or whether it is appropriate in our society that somebody else should be able to say, "Hang on, I think that's a line that you've just gone beyond unnecessarily." But Mr Jay, you take that in whatever way you want. I don't want to jump ahead of you. That turns over two pages, so don't do that. MR JAY Mm. I come back to a point that came from Professor Tasioulas: the possible difference between legal duties and ethical duties. I think what you were hinting at or perhaps saying is that ethical duties may, as it were, impose higher obligations than legal duties and it's insufficient merely to concentrate, say, on legal risk; one should be moving on to the issue of ethical risk. Is that a useful analysis in your view? PROFESSOR TASIOULAS: That's right. I think we have to understand law as not a kind of self-enclosed system. It's a set of norms. It's trying to achieve some valuable purposes and these purposes are appropriately described as ethical purposes, generally, on a suitably broad understanding of what the ethical is, which is the pursuit of whatever is of human value. But law's a particular kind of mechanism and in particular, enforceable law is a particular kind of mechanism and it might not be at all appropriate to pursue all ethical considerations through law for two main reasons. One is that some of these considerations might properly fall within a sphere of kind of private domain, and the example of adultery would be one example. It's not the law's business to concern itself with discouraging that sort of behaviour, even if it is immoral. Another reason is that it could just be tremendously counter-productive for the law to do this because it's a certain kind of blunt instrument. So there's always a very complicated question. Once we've identified the ethical ideals we want to affirm, including the ethical duties, to what extent are any of them properly pursued through law and in what way? It's very, very difficult. And then the further consequence of that is it's never enough then to say, "Oh, well, I'm complying with the law, therefore ethically I'm impeccable", because the law only embodies some of these considerations and there may be other very compelling reasons that apply to you. That's why I think it's important to talk about this notion of a culture, because a culture embodies norms that go way beyond and law and beyond legal forms of enforcement. There can be forms of enforcement where you lose the esteem of your colleagues which in some ways can be more potent than getting a slap on the wrist from the law.
Q.Do you have a take on that? PROFESSOR HORNSBY: Can I agree with that? I think it connects with how one thinks about a right to free speech. Because it's much discussed in connection with the First Amendment of the US constitution, one tends to think of the right to free speech in legal terms, and given recent legislation in this country, again, one thinks the law is ensuring that people have had this right and that it's taken away from them in certain cases. But I take it that one can think that a principle of free speech should be in place in many contexts not because there's a danger that anyone might be criminalised by virtue of what they say but because a principle of free speech is a correct ethical principle. I think when one thinks about the freedom of the press, one should recognise that if we think we have a right to free speech, that's not only because some constitutions say that we have but because we should be free to communicate with one another. That's a good thing. PROFESSOR MENDUS: Crucially what's underlying all of this is the very clear and simple claim that rights don't exhaust the realm of the morally good and bad, or, as one of my colleagues used to say, there are rights but the good man doesn't always stand on his rights, so although you have a right to certain things, sometimes it's not appropriate and not morally good to exercise that right. You won't be breaking the law, but you won't really be showing yourself up as a particularly good person either, and that's just straightforward and simple, I think. LORD JUSTICE LEVESON It becomes rather more difficult when one seeks to apply it away from the individual PROFESSOR MENDUS: It does, absolutely. LORD JUSTICE LEVESON to an organ such as the press. PROFESSOR MENDUS: Absolutely, and it becomes more difficult also, of course, if one wants to codify that, because that doesn't allow a great deal of room for judgment and nuance and all this kind that is very, very problematic. So the moral philosopher stays within the realm of the individual in part, but political philosophy does need to extend more in the direction of the law where there are questions about where it's appropriate for the law to intervene. Now, whether the law then it's John Stuart Mill. Whether the law then should intervene in all those cases is a different matter. LORD JUSTICE LEVESON Is this a fair analogy and correct me if it isn't. I'll be getting myself into trouble. It's not black and white. There is an enormous area of grey in the middle which covers the ground where it's not appropriate to stand on your rights, this point that you've just made, and whereas for individuals that can be left grey for all time, there is at least an argument that for an institutions as significant and as potentially powerful as the press, that band of grey should be narrowed so as still to leave an area of discretion, because that's also extremely important but within a narrower bandwidth than one could allow an individual? PROFESSOR MENDUS: Yes. LORD JUSTICE LEVESON I may not have expressed that very well. PROFESSOR MENDUS: If I understand you, then I think that that's right and I take it that it's part of what was what Jen was saying earlier about the difference between somebody in a private context, the individual who makes a I don't know, a racist remark or a sexist remark, and that may be left in the grey are
A.We don't think terribly well of such people, but we aren't going to go to a court of law for all sorts of reasons. It's a different matter with the institution of the press, where there has to be where there is more authority, more impact. If that's what you're saying, then I would agree with that, that that can't be left grey. LORD JUSTICE LEVESON Or as grey. PROFESSOR MENDUS: As grey. PROFESSOR HORNSBY: It connects directly with the megaphone effect. It would be intolerable that individual speech should constantly be monitored in case they were offending in any way but that's not the only reason why one cares more about press speech than individual speech. It's also because a million people are hearing what's said in the printed words of the press, rather than the two or three who might hear an individual. If there was a small wrong, it's a million fold wrong in the press context. PROFESSOR TASIOULAS: Can I just add something? There are sort of two points at which you might think the institutional extra power of the press institutional (inaudible) extra power creates more limited space. One is in the right itself, so individuals may have a right to express certain things that the press doesn't precisely because of the effects of the press expressing them being so much greater. Then there's the second point that I think that you were raising, about: even if it's within their right to do certain things, they may be subject to further restrictions because we want to discourage them or certain further considerations we want them to be subject to because you want them to use their right in a certain kind of way. But I certainly think the case of the racist expression I wouldn't think that if individuals have a right to make some sort of offensive remarks in a private context, you should say the press also has this right but we impose extra restrictions. I think the press wouldn't have that right, precisely because the power of the press and the significance of its speech as against the sort of private speech of individuals. LORD JUSTICE LEVESON So it may be that this is merely a manifestation of the consequence of the megaphone, that the bandwidth should be narrower. PROFESSOR TASIOULAS: Correct. LORD JUSTICE LEVESON The problem then becomes and again I'm moving ahead, but just keeping an eye on the overall goal how one monitors not the available bandwidth but the bit of bandwidth that we've just said that goes too far. PROFESSOR HORNSBY: There's not just the megaphone effect but the cumulative effect. PROFESSOR MENDUS: Yes. PROFESSOR HORNSBY: I mean, if one takes a particular piece of vocabulary. Imagine that a word which now we know no one uses had continued to be used and with the same force, and that had been done through the press, cumulatively, to all. The consequences would be terrible. MR JAY Can I go back to the privacy example and our celebrity footballer or whoever it matters not. We're referring to a discretion with a narrow bandwidth. It might be said that there's room for reasonable people to disagree as to where the notional mid-point of the bandwidth might be, and we've heard some slight disagreement as to that. But should one be setting the notional centre of the bandwidth at a point which favours freedom of expression or at a point which favours privacy, given that I think we said before that unless there's a clear justification for interfering with freedom of expression, then that right, as it were, to the extent to which it is a right, wins out? Do you see the point? PROFESSOR TASIOULAS: I don't think I'd want to concede to that particular point. So I think it might be the case that you really are confronted with a situation where there are just two alternative ways of specifying a legal requirement or a right and that require you to balance issues of privacy versus issues of freedom. Now, one of the first things to say there is that a lot of people think that the value of privacy just is the value of freedom. So it's not as if you're bringing in some other consideration; the idea of people being autonomous individuals is under threat if they can't have a domain of privacy. So it might then just be a freedom versus freedom kind of debate, but even if we leave that aside, I don't think there's any reason to regard freedom as a kind of privileged value that in any conflict has to win out. I just that just seems to be a piece of dogma.
Q.Okay. Professor Mendus? PROFESSOR MENDUS: I feel less clear about that. I'd like to introduce something that we haven't specifically alluded to here, and that is the importance of freedom of speech/freedom of expression in a society such as ours, which is multicultural and where many faiths are adhered to. So there's a bit of disagreement here, but of course there will be a lot of disagreement outside about religious matters, cultural matters, ethical matters, about the role of women in society, and it seems to me that in a liberal democratic state which is characterised by diversity and conflict, then there is an argument for I think freedom weighs quite heavily there. So I think I'd be more inclined than John is to say: well, the balance goes slightly in favour of freedom of expression over privacy in cases of that kind. PROFESSOR HORNSBY: I think I'm not clear what kinds of cases we're thinking of as being weighed in the balance, but it seems to me it would misdescribe certain cases to think that it's freedom of expression that we're weighing against privacy. If a journalist reports a story which some individual has a right to protest against by virtue of their right to privacy, then it isn't the motive of the journalist to exercise their right to freedom of expression. Nothing which justifies a right to freedom of expression has any particular bearing on their publishing this particular story. So it raises the question what the motive is of publishing the story in a case where privacy would seem to have been violated, and there's a question about whether a right to privacy wins out.
Q.I understand. I raise one final question in this way: if but only if the culture, practices and ethics of the press or a section of it are demonstrated to be deficient, is the correct ethical response either: one, to simply enforce the law better, on the basis that the law should cover all aspects of comportment in this domain; two, make new and more stringent laws; or three, attempt to promote culture change through a range of measures, which would include better ethical guidelines, a better regulatory system and overall an endeavour to enhance the culture, practice and ethics of the press? Or is it none of those three things or a combination of two and three? What do you think, Professor Tasioulas? It may be implicit in what you've said already what the answer may be. LORD JUSTICE LEVESON Just be warned that if you choose the last, I'm going to ask you how. PROFESSOR TASIOULAS: I think the initial answer is one and three. Of course, you should always enforce the law. If the law's not being enforced, it should be enforced, and of course you should be doing things to promote the culture that realises values beyond those necessarily that can be in any way enforced by the law. And then you visit two if you realise that doing one and three by themselves aren't producing the desired effect. You then can contemplate new legislation. But if it is the case that the law as it exists hasn't been properly enforced, then that would be the first step, and to do the third thing as well. You should always be doing that. LORD JUSTICE LEVESON It's not necessarily easy to do that because, for reasons which I'm sure you'll understand, for the law to be enforced requires somebody to complain, it requires the investigative tools to be available, it requires the resource to be directed towards it, and it would be a poor society, would it not, where we said, "Well, everything's all right unless the police catch you." PROFESSOR TASIOULAS: No, absolutely, and that's why three has a kind of priority, because the law really should operate as a backstop measure where things go dreadfully wrong, and ideally what you want is to have a situation where people have been habituated to complying with certain standards that make it the case that just in virtue of their professional ethos, they won't be in danger of violating the law. So one and three are actually intimately related. PROFESSOR MENDUS: Well, I agree that ideally the law is a backstop, but I suppose one reason you're here is because it's not an ideal world and the backstop hasn't really been as effective as it might. LORD JUSTICE LEVESON But it may never. PROFESSOR MENDUS: It may never. LORD JUSTICE LEVESON And I'm not sure that an ideal would have it different because the idea that you have the authorities looking over everything to pick up every breach suggests a society which I'm not sure that we would necessarily enjoy. PROFESSOR MENDUS: Okay, that's the sort of Benthamite world where everything is exposed to the public gaze and nobody can want that. I suppose my compromise, in a way, perhaps, is to go for three, but to say: well, surely guidelines, codes of ethics, changes to the regulatory system, these are it's not exactly more stringent law but it is moving in that direction. It's moving away from just self-regulation. PROFESSOR HORNSBY: In answer to the question I think I'm inclined to say "all of the above", as it were, but well, one should have more enforcement of whatever codes or laws are in place, and it does seem as though a culture change is needed and that more stringency in the code or more definition in the code in certain areas would help that. But I'm afraid there are practical questions which I just can't answer. I just don't know how it could have come about that there wasn't enforcement in a case where very obviously there should have been, and it's not only the press as an institution which I take is to be blamed for that. PROFESSOR MENDUS: And the law itself is a very powerful means of changing culture, or can be. Has been in the past. LORD JUSTICE LEVESON Only if it is enforced or capable of being enforced. PROFESSOR MENDUS: Yes. LORD JUSTICE LEVESON I'd be very interested if I take something away, removed from this to know to what extent the law in relation to exceeding the speed limit has been the enforcement has been changed by the abandonment of those police officers with speed guns that could catch you whatever you were and the creation of speed cameras, where everybody can see as soon as the lines appear on the road that they'd better slow down, and one visibly sees brakes go on and then people speed up past it. So there are real questions about law enforcement and that affects people's view of speeding. PROFESSOR MENDUS: Of course, of course. But insofar as the question is how do we effect a culture change, it could be that part of the answer to that question is by changes in the law. The decriminalisation of homosexuality served, over the medium to long-term, to change the culture. If you ask why the culture changed, the change in the law is a very significant feature there. It wouldn't always be the case, but there are instances that can be cited. LORD JUSTICE LEVESON So if I now move on to the question that I said you'd be asked if any of you chose the last that is the third. Do you have a view, from a philosophical perspective, of the way in which one can narrow the grey matter, as I've put it, in a way that satisfies the public but doesn't harm the rights that we've been talking about all morning unduly or inappropriately and so preserves the right of the press to be offensive, for people to be offended by what the press does but their ability to hold us to account? How can one best achieve that end? I appreciate I'm not asking you to give me the answer to my Inquiry in the back of the book, but for those who have thought about it from your perspective, I'd be interested if you have anything to offer on the subject. PROFESSOR TASIOULAS: I don't know. I think, you know, we can almost only speak as amateurs, but what I would say is: in a way, it's problematic to talk about someone trying to achieve this effect. The sort of culture we're talking about is one for which we're all responsible. It's not just legislators or people in the media; it's also individuals as consumers of what's in the medi
A.It's how people talk to their children, it's what they get them interested in. It's how they set certain ethical boundaries in their own lives and so forth. So we're talking about how you create a culture where people spontaneously act in accordance with certain standards, and it's hugely important because, you know, there is a law against murder but I would hope that most people the reason they don't murder is not because of the law but because of inculcated certain standards, and you want that to be the case in other areas as well. In the case of the media, there are powerful countervailing forces with respect to profit-making which create powerful incentives to go against and undermine the sorts of values ideally we would like to see this culture manifesting, and I simply have an amateur-ish view, which follows the view of others, that self-regulation by the media doesn't seem to be working. It's been something that's been attempted over recent decades and it's continuously seen to fail, and that some sort of statutory basis is probably going to be necessary, but what that is I would leave to experts. PROFESSOR MENDUS: I think in the most general terms, it seems to me that the incentive structure has to be changed so that at the moment, as John said, one of the problems is that there are serious, serious profit-making incentives for the press which act against what it seems to me is the main purpose of a free press from our point of view, which is to provide information. So the provision of information is why you want a free press but that's not the motivation that the press necessarily has. There's motivation there to make profit, which is fine, but if the making of profit is something which actually cuts against, conflicts with the provision of appropriate information, then there are ways through guidelines, regulatory systems and so on of dealing with that which are such as to change the incentive structure to ensure that those vast profits cannot be made in that way, so there would be monitoring of those areas. But I'm really out of my depth now. LORD JUSTICE LEVESON It may be unfair. PROFESSOR MENDUS: To be honest, you're just getting my view now. LORD JUSTICE LEVESON But actually, it's not two of you have said that, and I understand that, but you are looking at the problem through a very different window from the background of your experience. PROFESSOR MENDUS: Yes. LORD JUSTICE LEVESON So nobody will hold you to task for anything you say. They will all hold me to task for whatever I say. I take your views precisely with the caveat that you've expressed them. PROFESSOR HORNSBY: Another comment, if I'm allowed to, from an amateur: it does seem to me that it's important that editors should be seen as in charge, ethically speaking. That's so of course, it's their judgment whether a story is published, but it also ought to be under their control how information which leads to a story is garnered, and they, it seems to me, have responsibility for ensuring that not they alone know what codes the press is governed by but also that the journalists should know them and that it should be assumed that there's some oversight from the editor. MR JAY I think that was extremely helpful. Thank you very much. LORD JUSTICE LEVESON Thank you very much. I'm very conscious that the three of you have put a lot into writing and have come along as well. I repeat my thanks to you. I'm equally conscious that this sort of dialogue is not necessarily the best way to get the nuanced views that you wish to express, which is why we've done them in the way that we have, but we have your written views. If, in the light of the discussion we've had, there is anything you want to add to what you've said or express differently the transcript will be available online so you'll be able to see it, but if there is, please do not hesitate in just dropping a note. That's not a requirement; it's only if you want to in the light of your reflective thoughts. Thank you all very much for coming. We'll take a break. (11.41 am) (A short break) (11.47 am) MR JAY The next witness is Dr Rowan Cruft, please. DR ROWAN CRUFT (affirmed) Questions by MR JAY MR JAY Thank you, Dr Cruft. The starting point for your evidence is the 9-page submission that you kindly provided us. It's under tab 47 of the bundle. LORD JUSTICE LEVESON Thank you very much and thank you very much for the effort that you've put into preparing this submission.
A.Thank you.
Q.You're a senior lecturer in philosophy at the University of Stirling. Can you tell us first of all what your main research and philosophical interests are?
A.Yes. My main interests are in the nature of rights and duties and the justification of rights and duties, thinking about the relationship between different sorts of rights and duties, so property rights or human rights or contractual rights.
Q.Thank you. With the first three witnesses we looked at a number of concepts: the difference between freedom of expression and the public interest in a free press.
A.Yes.
Q.From your perspective, what are the equivalences between and differences in freedom of expression on the one hand and freedom of the press on the other?
A.Okay. I think, as I said in the written statement, I'm attracted to the view that freedom of the press is one very important aspect of freedom of thought and expression in general, and there's an important value to a society with freedom of thought and expression. I think it helps constitute a public realm to which in which we all have roughly equal status, so it's a realm in which anyone can have their say about public matters. And I suppose the thought underlying this is if you try to imagine a society where we all have freedom of thought and expression but there's no free press the press is very constrained I think we'd think: well, that isn't really a society with full freedom of individual thought and expression. I can say more about this if you like?
Q.Yes.
A.A related issue, I think, is if we do see freedom of the press as important if we think, for example, that newspapers have a right to freedom of expression, it's not going to be grounded in the same way as individual rights to freedom of expression. So an individual right to freedom of expression, in my view, is justified by the individual's interest in being able to take part in the public sphere and newspaper's interests, insofar as they have them, or corporate entities like that, those don't have the same moral status; they have a derivative status. So even if I'm open about this even if the press does have a very important right to freedom of expression, you have to remember that it's justified by what is does for individuals by constituting a public sphere in which all individuals can take part.
Q.You mentioned earlier a relationship between rights and duties. We can debate that theoretically I doubt that's going to be helpful, though. Do you see the press having any ethical duties in their public role and if so, why and what?
A.Yes, I certainly do. I think before I go on to talk about that, I'd like to add that even though they have ethical duties, it doesn't follow that regulation must enforce those duties. It might do in some cases, it might not. But I think we need to remember that in a liberal society one of the things that makes us a libel society is the view that ethical duties don't always have to be enforced. So I have a duty not to cheat on my partner, not to lie to my friends. A liberal society doesn't enforce those duties through law or in other ways. I think some of the ethical duties of the press might be like this and others might not be, but the bare fact that they have ethical duties to readers, to subjects of stories and to a range of other actors, it doesn't immediately follow that regulation is appropriate, though I think some regulation is.
Q.How do we differentiate between
A.Indeed.
Q. the circumstances? I owe an ethical duty not to lie to my friend, but the press may owe an ethical duty to propound accurate stories.
A.Yes.
Q.It owes a duty to its readers not to be inaccurate.
A.Yes.
Q.If there's a duty to the readers not to be inaccurate, that may or may not carry with it a duty in the state, through a regulator, to ensure that accuracy is maintained and inaccuracy is stamped out. How does one go about LORD JUSTICE LEVESON Or put it another way, how are you going to draw the line?
A.Indeed. LORD JUSTICE LEVESON You've created the line; now how are you going to draw it?
A.Indeed. I think it's very hard to draw, I'm afraid. I think there are some things which is perhaps why we're here. There are some things I can say about this. One is that the distinction between the public and the private might be one useful way to draw it, and I think I said in my written submission that I think there's room for a lot more work, philosophical work, on when something's an appropriately public matter and when it's a private matter. But I have quite clear intuitions about some cases. I don't know quite what line underlies them but here's an example. Say interest in the health of a politician's child. In many contexts, I think that might be considered a private matter that shouldn't be a matter for shouldn't enter the public sphere. Perhaps not in every context, but in many contexts it should be. Contexts where it could enter the public sphere might be cases where revealing this health issue would reveal hypocrisy on the part of a politician or is relevant to particular policies a politician is pursuing, but perhaps unhelpfully for you, I think it's rather hard to draw a clear line. LORD JUSTICE LEVESON Yes. MR JAY It may be hard to do so, but what are the principles which might draw one to finding where the line is? Carry on with the example you've given or choose a different example, if you're more comfortable with that.
A.Let me think. I think in terms of principle, I think the three things I mentioned towards the start of the written submission seem to me the well, helpful guiding principles, even though I don't think they draw us a very definite line. So one is in idea is that a liberal public sphere, one in which every member everyone in the community can take a part is just a very good thing in itself. It's useful partly for the results it creates but it's also a good in itself that we all have the status of being able to take part in the liberal public sphere and it seems the press plays a role in that. People who are insufficiently articulate or insufficiently confident to take place in the public speech, the press can give them a voice. But there are also some very well-known instrumental benefits of the press. So it's a very important check on political power and other forms of power. It's an importance also of education and an important means of enabling democratic decision-making. I suppose I think these principles give us some they point towards some policies. They point towards having a diverse press and they also point towards, I think, not having too much of a limit on press freedom. I'm wary of saying more, I have to say. Can I say more about why I'm being tentative? I'd quite like to.
Q.Yes.
A.It's partly just personal my own research is on the philosophical foundations of the principles not the institutions, but I think there is also an interesting philosophical point here, which is that I think the route from a foundational principle to a particular institutional way of realising that principle is not at all direct. I think there will be different ways of realising different underlying principles and a lot will depend on the context. An example from a different area might be something like lay participation in criminal trials. So I think and here I've been influence by my colleague Anthony Duff's work, and his view is that the criminal trials should be seen as a situation where you hold the defendant answerable to the public at large. I like that view of a trial, and then the thought is: how do we make the institutions of trial represent the public at large? And there are various ways of doing it. You could have lay juries or you could have lay judges or magistrates or other ways of doing of doing it, and I think it's very difficult to determine a lot will depend on the context and the history and what we consider most symbolically important in our society to work out which way of doing it is most important and is going to work best.
Q.Thank you. The public interest in a free press, it is clear, in your view, should be balanced or limited by other rights and other interests.
A.Yes.
Q.But what is the algorithm for doing that?
A.There is none, I'm afraid. That's I think, in a way, that's the point I was trying to make a minute ago. There isn't algorithm for getting from principles to particular institutions. I think something we could bear in mind is the particular symbolic importance of particular principles that we already have. So take the principle that journalists shouldn't be compelled to reveal their sources. I'm tentative for the reason I mentioned before, but speaking tentatively, it seems to me that we might think: well, in the UK, this is a principle that we all think of as very central to our liberal society and perhaps if we lived in a different society, we should be more willing to limit that principle than we should in the UK because of its historic importance. So that might be one of the contextual factors that would make a difference to where and how we decide to implement the underlying principles.
Q.May I take that one example?
A.Sure.
Q.Under clause 14 of the existing Editors' Code practice, it says: "Journalists have a moral obligation to protect confidential sources of information."
A.Yes.
Q.Is that helpful language without more? By reference to a moral obligation, is that an absolute moral obligation? Is it a qualified moral obligation? How would we begin to analyse that?
A.That's a good question. I think two things strike me about it immediately. One is that if it's a moral obligation, as I said earlier, it doesn't follow that it's therefore a legal obligation, or even that it should be a legal obligation, although for the reasons I was saying about the symbolic important of that particular provision, I think maybe it should be. LORD JUSTICE LEVESON Well, there are exceptions.
A.Yes, of course. Of course, sorry. That was the second thing that I was going to say, which is that saying something is a moral obligation and that it should be restricted in law doesn't imply it's exceptionless, and I think there are very, very few moral obligations that are exceptionless. Possibly the obligation not to torture. Very few indeed, actually, though the cases for exceptions will depend on the importance of the particular obligation. And I think it's also important to really that if you do see in as an exception case where a violation of an obligation is justified if you see it as genuinely like that, rather than a case where the obligation has just vanished, then you're still going to need to redress an explanation and things like this to the person whose obligation you're violating. MR JAY Couched in those terms, the moral obligation to protect confidential sources, one may be forgiven for thinking: well, that is an absolute obligation. Maybe not? It's not made expressly subject to any other competing rights, privileges or
A.No, that's right. LORD JUSTICE LEVESON But as a matter of law, there are circumstances in which the law will require a journalist to reveal a source. The journalist then, of course, always has a choice: either to reveal the source in accordance with the law or not to, but then face the consequences of failing to comply with the order of the court.
A.Yes. There might sometimes be cases where the morally appropriate thing to do is not to reveal and then to be punished for it. I think that could be right sometimes but not always. I suspect with that one, it will depend on the powerful interests at stake. The kind of examples philosophers tend to get drawn into are things like: suppose the existence of an entire city is at stake and it's going to be destroyed. I'm wary of being drawn into those kind of examples. I think they can mislead us. LORD JUSTICE LEVESON That's the torture example.
A.Indeed. I think they can be misleading and can be misused and people can too readily think: well, we're in one of these extreme circumstances so let's not worry about violating the right. I think we have to be very, very careful about thinking of those sorts of cases. LORD JUSTICE LEVESON You said a few moments ago that the link is not direct.
A.Yes. LORD JUSTICE LEVESON I understand that, because there is no direct correlation between the right or duty on the one hand and the potential mechanism for if not enforcing, at least encouraging compliance on the other.
A.Yes. LORD JUSTICE LEVESON But can you assist me in relation to the issues that are likely to have to be considered when making that journey, and also as to the type of structure that is best placed to making the appropriate balance, having regard to all those considerations?
A.Yes. Yes. I can say a little. I have to confess I don't know if it will assist you very much, I'm afraid, but I can say a little. LORD JUSTICE LEVESON Don't worry about that. It's not stopped anyone else in the last nine months.
A.The little I can say is that my own view is that because of the importance of a free press and the cultural importance of thinking we live in a nation with a free press, moving too quickly to something that looks like legal enforcement of these duties would be worrying, and it seems to me that I've seen some of the proposals around, so things like have self-regulation with a statutory backstop. I've seen some of these proposals. I mean, I think things like that could strike the right balance and to do so I think the thing I'd want to stress would be the importance of making it clear that this kind of regulation involves answerability to the public. It seems to me that's perhaps the thing that struck me as following most directly from the principles I outlined, that the press plays this very important role in constituting a public sphere and because of that, it should be answerable to the public for that role. So if you're going for something like the statutory backstop to self-regulation idea LORD JUSTICE LEVESON Or underpinning, rather than
A.Sorry, yes. LORD JUSTICE LEVESON If that's what you meant.
A.Yes. I assume it is. I think you need to make it clear that it's answerability here to the public. So in my view, that involves lay involvement at some level, either in the body that assesses self-regulatory mechanisms or somewhere else. LORD JUSTICE LEVESON Or it may be inimical to the concept of the word "self", that it is actually to be by the public.
A.Yes. Though I suppose something I'd add is it shouldn't only be by the public. I would be suspicious of something that was too adversarial, in the sense that you have the regulators by the public and then you have the press and the two were separate. I think one of the problems with that model is it can lead the press to think: "Well, they set the moral limits, that is a sort of separate issue for them, and we'll just live within them." I think part of what we want to do is to encourage the press to see their ethical moral duties as part of their own professional conduct, and I know most members of the press do; I'm not saying they don't. LORD JUSTICE LEVESON No, no, it's much more important than that. You couldn't just have the public, not least because of the risk that the press would say, "Well, that's what these individuals think. We don't agree and we're just going to ignore it."
A.No, indeed, indeed. I just wanted to stress I think it needs to involve both parties. It needs to involve people from inside the press as well as from the public, but it needs to be visibly answerable to the public. LORD JUSTICE LEVESON And independent, in the sense that people should not or do you think it doesn't matter whether, as it were the phrase that's been used in the Inquiry they're marking their own homework?
A.Yes, I think that would be that would be problematic. On the other hand, I think you'd want my sense is you want at least some of them in there to stop it seeming too adversarial, but you also want the public in there and you want it to be visibly independent of government and the state as well. LORD JUSTICE LEVESON I agree with that. MR JAY In terms of the sort of principles which would underlie a system of press regulation, you describe these on page 5 of your report, our page 00882.
A.Okay.
Q.The second paragraph.
A.Yes.
Q."Matters such as requiring media to accompany stories with details of payments made to or received from members of the public in return for publishing the story requiring editors' and proprietors' political and financial interests to be registered publicly Those sound like arguably very sensible, pragmatic solutions but what's the philosophical underpinning for those solutions?
A.I think the philosophical underpinning is the thought that the press is one of the main determinants of the formal structure of the public sphere, the sphere in which we all can have our say about how we live together, and in this way it's not that unlike government. So the thought is: the kind of things we require other public bodies to fulfil, maybe we should think about extending them to the press. But I'd like to add two qualifiers, if I may.
Q.Certainly.
A.One is simply the same qualifier about tentativeness, the same thought that I don't think you can take the philosophical principles and crank a handle and get out a policy proposal from it. I think a lot depends on the particular symbolic importance of thinking we live in a free society and I think we have to bear that in mind. The second qualifier is that you might think some of these requirements are things we do place on publicly funded bodies but the press aren't publicly funded, they're privately funded, and I won't want to suggest nationalisation of the press. So I think there's an interesting tension there, actually, between their status as private and as public and that has to be borne in mind when looking at these proposals.
Q.Their status as private bodies does not, of course, mean that they should be free from all regulation.
A.Of course not.
Q.It's a question of balance. It might be said that if the press acts in the public interest and in that sense it's a public body, one of the principles which should therefore apply to it is the principle of accountability, and from that you can derive the specific subprinciples which we can see in the second paragraph on page 5. Is that a fair analysis?
A.That is a fair analysis, but there's a "but", I'm afraid, as well. It's a fair analysis but I don't think we can draw these lines very sharply, so I think there will be private businesses that don't have as overtly a public role as the press where we might also think they play a sort of public role. You might think large supermarkets are like this, just because they make a very big difference to the kind of public sphere we occupy, and I don't think they need to be subject to exactly the same public requirements as the government. I think's more of a sort of continuum, I would want to suggest, than a sharp line where you say, "These are public bodies and these aren't", and the press falls sort of near that line and it is a public body but yeah.
Q.Another pragmatic idea you advance this in the third paragraph, halfway along: "One possible change to support greater respect for current law would be to increase the legal responsibilities of proprietors, editors and directors for the actions of their employees That would have knock-on advantages, but what's the philosophical principle underlying that?
A.This is one of those cases where it seemed pretty clear to me that there are ethical duties here that aren't being respected. Whether we should use law to enforce them here I'm suggesting we do again, I think we need to be tentative. But the thought was that there seems to be one of the cultural difficulties at the moment is the sense that directors and managers are not very willing to identify with the thing they direct or manage and that this might be one way of increasing that identification so that you feel genuine shame if your body by "your body", I mean your corporate entity for which you manage if that does something wrong, even if it wasn't your fault in an individual sense. So that's the purpose of the suggestion, and I would want to add to it that idea that it's one of those cases where we have a clear ethical duty. Should we have a legal duty here? Perhaps; perhaps not. I think we have to think about the knock-on effects of it and that's something where someone with legal expertise to follow that through should come in.
Q.May we turn to another important area, such as a code of conduct.
A.I was thinking sorry, just one more point on that, that last thing, which just occurred to me. I'm not sure this is actually so relevant to you, but I think it's worth mentioning, is I think the level of pay for directors is relevant to this too. I think if you think of people in charge of large organisations as people who you have to recruit through a huge amount of pay, then you're not recruiting them for the intrinsic good of being part of this organisation and doing it for its own sake, and so I think there's a sort of tension in society, evidenced both by that and by the need to give directors more legal responsibility for what they do. LORD JUSTICE LEVESON I'd be very grateful if you didn't draw me into the topic of directors' pay.
A.That's why I thought it may not be the relevant thing here. MR JAY Okay. Code of conduct. You deal with this in the general context, as it were, under question 8 and then more specifically in relation to the current code
A.Yes.
Q. in section 9, but we're going to dwell a bit on section 9 or question 9. Could I ask you, please, though question 8, your page 7, our page 00884
A.Yes certainly.
Q. to develop the point that you're making there, please?
A.Okay. There were two paragraphs to question 8 and the first paragraph just restates what I see as the fundamental principles underlying the importance of freedom of the press. So on the one hand the press' role in constituting a public sphere in which we can take part as equals; on the other hand, importance of constraining power and enabling democratic decision-making. Then in the second paragraph, I talk about media organisations being answerable to a public body because of their role in shaping the public sphere and I suggest that we shouldn't take this as a very demanding role. We're not saying the press' sole role is to enable democratic decision-making, is to hold the government to account. I think that would be much too demanding and it overlooks that first thing I said, which is that the press just creates a public sphere, it's part of the creation of that, and we want it to be a free public sphere, so we don't want to say the press has to do X and has to do Y, but nonetheless we want to make sure it doesn't undermine or distort the instrumental ends that it could achieve, such as holding government to account or enabling democratic decision-making. So the idea here is that we shouldn't censor censure the press hold them to account or criticise them for failing to promote democracy but if they distort or pervert democratic decision-making then we could rightly, I think, hold them to account for that because of their very important role in enabling such decision-making. LORD JUSTICE LEVESON You then have to define what you mean by "distort" and "pervert", which actually carries with it an enormous value judgment.
A.Indeed. No, indeed, indeed. As a philosopher, I'm tempted just to say "indeed" and duck the difficult issue and leave that respectfully for you, but I don't know, and I think let me think. I suppose the idea I had in mind by "promoting" would be things like a press that took it on itself to explicitly outline the different parties' policies and to help readers work out which one they would go for, and I certainly don't think we need to see the press as doing that. Distorting or perverting? I suppose lying about a central party policy might be one sort of case like that. Central political party policy. Misleading the public about a crime committed by a central politician might be another case. But these would have to be cases of sort of knowingly misleading. I'm not saying if you suspect this that you should be criticised for following up your suspicions but that sort of thing. MR JAY The code of practice as currently constituted makes it clear that the press must take care not to publish inaccurate, misleading or distorted information.
A.Yes, yes.
Q.I think we can agree about that. But then the press is free to be partisan.
A.Yes.
Q.So being partisan might, according to some, be liable to distort or pervert the democratic process. But the press is nonetheless free to do that. Do you see a difficulty there?
A.Yes, yes, yes, yes, yes, I do. I think this relates to the point I mentioned about the diversity of the press. If the press is going to play this role of giving a voice to people in the public sphere, then it's important it can represent the diversity in the public sphere. It's not clear well, it's clear to me that that shouldn't require that every newspaper has to cover the broad range of party political opinions or anything like that, but you might think it does support making sure that there's not a monopoly of opinion, that all the press speak with one voice.
Q.So one would need other levers aside from the code to ensure a plural press?
A.I think so. I think so. That was my sense, looking at the code, that it's not there to create a diverse press. That's for someone else some other aspect of (inaudible).
Q.You look at a number of specific points on the code under which 9.
A.Mm-hm.
Q.This is on your page 8, our page 00885. You say: "First of all, the code could do more to require proprietors, editors and journalist to declare their financial and also their political interests and to declare these to readers as well as editors." I don't think the code does anything to require proprietors, editors and journalist to do that.
A.That's right.
Q.Is there not, in this context though, a significant difference between financial interests and here we mean the financial interests of the proprietors and the political interests? Because if we were to require proprietors to declare their political interests, wouldn't we be interfering with their freedom to be partisan?
A.Mm. I think by declaring political interests, what I had in mind was something like a declaration that this newspaper is going to support this party, if it is, and these sorts of things. I mean, newspapers often do that anyway, but but that was the sort of thing I'm not sure whether there's a sharp distinction here between financial and political interests. I certainly felt the code could do a lot more to require declarations of financial interests. I was quite surprised that section 13(2) only required journalists to declare financial interests to their editors and not even to readers, if you're I think there's something there which says that.
Q.Mm.
A.That seems really insufficient.
Q.That's where they're writing about shares or securities and whose performance they know.
A.Yes.
Q.So it's the specific context of financial journalism.
A.No, indeed. That's specifically financial journalism. That just struck me for political interests yes, I'm not sure. I think it depends whether a requirement could be found that was workable without being too restrictive, and you're right, we certainly wouldn't want to require we wouldn't want to limit the press so that it couldn't be partisan so long as we have a sufficiently diverse press, I think.
Q.One important point you make in the third paragraph, you say: "Although several aspects of the code cover duties owed to readers, the idea that ethical behaviour by the press involves treating readers respectfully could be made nor explicit." The first point I suppose one could ask you about is why the concept of respect is so important?
A.Yes.
Q.And secondly, why limit it to readers? Why not anybody who might be adversely affected by the lack of respect?
A.Yes. I don't think it should be limited to readers, actually. I think it was I was thinking about readers in that paragraph of the submission and I was thinking about section 1, which is the point I think where they talk about respect for the truth, and it seemed to me that could be thought of as respect partly for readers. But why respect? That's a good question. My sense is that that is the concept that that that is the fundamental moral concept here that goes along with duties. You respect people when you respect people, you're doing your duty to them. I wanted to use that concept partly for reasons I think I mentioned earlier in the written submission and partly because I think that's interestingly distinct, though related, from the concept of harm. I think sometimes you can harm people while respecting people. Sometimes respecting people requires you to harm them. You have to tell them unpleasant truths, these sorts of things. So I wanted to make it clear that the duties we're thinking about ethical duties of newspapers is not that whenever they're harming someone, there's a duty that's been violated and that when you have people whose interests or wellbeing are going to be interestingly in conflict, you have a conflict, therefore, of duties. Sometimes you can respect someone and that still involves harming them. LORD JUSTICE LEVESON Yes, but there has to be a countervailing benefit, if it is true respect. So if I take your example of the bad news: a doctor tells a patient that he or she is suffering from a serious illness. Well, there's a corresponding right in the patient to know
A.Indeed, yes. LORD JUSTICE LEVESON about their health.
A.Yes, that's right. No, that is right, and I think that's definitely I believe that, but I think we then need to notice that the benefit we're talking about here might not be benefit in any obvious sense of wellbeing or happiness. So I might benefit by learning I only have nine months to live, but even if that makes me much more miserable, even if I would have had a happier final nine months by not knowing it, I still think I benefit, but I think it's a rather morally loaded conception of benefit there. It is not necessarily LORD JUSTICE LEVESON Well, it's one of the things that has gone through the ethical considerations of doctors, whereas years and years ago the medical view was different
A.Yes, yes. LORD JUSTICE LEVESON as to what should be explained.
A.Yes. LORD JUSTICE LEVESON The whole concept of informed consent has developed
A.Yes, yes, yes. LORD JUSTICE LEVESON over recent years and indeed got legal ramifications associated with it.
A.Yes, yes. LORD JUSTICE LEVESON But there has to be something on the other side. If there's nothing on the other side
A.Yes. LORD JUSTICE LEVESON then there is no counterbalance.
A.Yes, no, no, I completely agree, I completely agree. I think the reason I'm stressing this is out of an attempt to avoid the kind of muddled thinking which I where I think you think: "This is going to make this person happier so I have a duty to do it, or this is going to make this person have a life that is worse in simply subjective terms of how it feels, and therefore it counts as something I have a duty not to do." It seems to me that the kind of benefits we want to focus on include the kind you're drawing attention to, where it's a benefit of knowing the truth about something, even if that actually makes my life get worse in the sense of my subjective feelings. I just wanted to draw attention to that partly in order to stress that I think sometimes where it looks like there's a tension between respect for readers and respect for subjects of stories that's not necessarily true. Have I got time to just say a moment about that? MR JAY Mm.
A.So I think I had in mind the following thoughts. Suppose that most of us are interested in some grubby detail of some politician's private life. In some sense, you might think that's therefore a matter of public interest but I think that would be wrong. You might also think that what we have to do here is, on the one hand, balance respect for the politician's privacy with respect for what everyone everyone wanting to know it. And I just wanted to try and make clear that I think the bare fact we want to know it, it doesn't mean it's really in our interests or going to benefit us. I think if we thought about it in a quiet moment do we want to be the kind of people who know this grubby detail? Sometimes we do. Sometimes it's relevant and necessary to their ability to pursue their duties, but if it's simply knowing it for its own sake as a matter of nosiness, I'm not sure we would all think we really want that and therefore I'm not sure it's really in our interests and therefore I'm not sure it's really a matter of balancing the readers' interests against the politician's interests. The reader doesn't really have an interest. That's not to say the press shouldn't be allowed to publish that. They probably should in a liberal society. I think it depends on the case. But I don't think it has to be seen as a matter of conflicting interests. MR JAY Thank you. You made some observations about the public interest exception in the code.
A.Yes, yes.
Q.A couple of points. We can see from the code that and this is dealing with the asterisked main provisions in the code
A.Yes.
Q. where the exceptions are to the clauses which are asterisked, but there's said to a public interest in freedom of expression itself.
A.Yes.
Q.What's your view about that consideration, apart from its apparently tautologous or circular nature?
A.Yes, I think it's true and maybe that's because it doesn't tell us much. I had a worry about it, which was the fact that freedom of expression is in the public interest and it clearly is it doesn't follow that every instance of expression is in the public interest, as I'm sure you're all aware. I should be clear there clearly are cases where expression should be limited, cases such as incitement to violence or slander or bad advertising, misleading advertising might be another, and so I thought it perhaps didn't really add very much to say there's a public interest in freedom of expression in itself and would be misleading if it was taken to suggest that that sort of licences every expression.
Q.Can I ask you to explain the point you're making in the penultimate paragraph about distinction in degrees of normativity?
A.Yeah. This was just from my own reading of the code. It looked as if there were only two degrees of normativity in the code. Either you had a star and exceptions could be made on public interest grounds for exceptional cases where you can violate the code's requirements or it didn't have a star and no exceptions could be made. I thought if you ignore all the detail and just think: is it helpful to have a code with those two degrees of normativity it probably is quite helpful to have something simply like that, not to have too much complexity. I suggested in my written statement that a characterisation of the values that should underpin journalism might be helpful too, but I don't think we should go to the point of saying: here's best practice in journalism, here's the best kind of journalism, we should insist on that all the time. I think that would go against the reasons for having a liberal public sphere that I mentioned at the start which underpins the importance of a free press. But I think having just made it two degrees of normativity and a list of values seemed to me that that might get the right sort of helpful helpful distinctions. MR JAY Thank you. That's very helpful, Dr Cruft. Those are all the questions I have for you. LORD JUSTICE LEVESON It is helpful. I'm very conscious, as I said to your predecessors, that asking people to come and talk about these concepts off the top of their head is quite difficult and may mean that when you reflect on what you've said that, you've not quite expressed yourself as you may have wished. So if, as you reflect upon it, if you wish to reflect upon it, which you may not, if you want to add in ignore to what you've said, you're very welcome to do so.
A.Okay, thank you. LORD JUSTICE LEVESON I'm very grateful to you for the time that you've given the Inquiry.
A.Thank you for inviting me. Thank you. MR JAY Would you wish to rise for two minutes? LORD JUSTICE LEVESON Certainly. (12.30 pm) (A short break) (12.32 pm) MR JAY Sir, the next witness is Professor Megone. Tab 49. LORD JUSTICE LEVESON Thank you. PROFESSOR CHRISTOPHER BRUCE MEGONE (sworn) Questions by MR JAY MR JAY Please take a seat. First of all, your full name?
A.Christopher Bruce Megone.
Q.Thank you. You've kindly provided us with a witness statement, which runs to 14 pages, I think. Can I ask you, please, to confirm the truth of that statement?
A.Yes.
Q.You are professor of interdisciplinary applied ethics at the University of Leeds?
A.Yes.
Q.Could you tell us at least what your main research and philosophical interests are?
A.So my more theoretical interests are in Plato and Aristotle's moral and political philosophy, and neo-Aristotelian views of moral psychology that's about rationality, desire and value and then I write on medical ethics and business ethics principally.
Q.So interdisciplinary applied ethics between which disciplines are we looking at?
A.So in my teaching, particularly, I work with colleagues in engineering, biosciences, medicine, dentistry, so right a whole range of areas.
Q.Thank you. The public interest, first of all, in a free press in other words, a press free from censorship, I suppose. How do you go about analysing that statement?
A.So in line with what I said in the witness statement, I think that public interest in a free press is primarily an interest in a press which serves two particular functions equivalent to the common good: one, the function of informing providing information for the public about a range of issues for them to make choices about their lives and the kind of community that they live in and secondly, the function of holding to account those in positions of office, whether it be political or commercial or cultural, who serve the public. So provision of information, and through that provision of information, also holding people to account.
Q.So in order to serve those public interests, as you say, the press will need to carry out its work with accuracy and rigour; is that right?
A.Yes, that's right.
Q.To what extent should the society as a whole, or a regulator within it, be able or free to impinge on the freedoms of the press, as you describe them?
A.So I think that, as you say, there's a whole range of things that in order to fulfil those functions properly, the press needs to adhere to. You've mentioned impartiality, recognising its own potential conflicts of interest, avoidance of bias, truthfulness, making good judgments about what's important to bring to the attention of the public and what isn't, amongst a whole range of stories that may prevail on a daily basis, and then a number of constraints that they may have to adhere to which might be viewed as other parts of the public interest or the rights of individuals concerning matters of privacy, confidentiality and the like, which, even though there's a public interest in bringing information to people, may constrain that information being brought for yeah, and those are rights of individuals and they also pertain to things like security, judicial process and so on, a number of other factors, which could be impinged if certain information is brought out at inappropriate times and so on.
Q.You mentioned impartiality, Professor Megone. Under the code, the press is free to be partisan, presumably because society has made a judgment that the "rights of the press" are more important in terms of being able to be partisan than other rights in being impartial. How do you see that working?
A.Yes. I suppose the press is I've talked about it presenting information. I suppose the press both presents information and presents opinion, and in the presentation of opinion, we accept that at least certain parts of the press are entitled to partiality. There's obviously some part of the media or press which is subject to constraints where they must be more impartial, present two sides of the coin on every case. So when it comes to opinion, we allow for partiality but then it's important for those organisations to present both opinion and facts, that they make clear when they're doing which. So you read the news sections and you expect those not to be clouded by partiality. LORD JUSTICE LEVESON But that's not entirely straightforward, is it? Because I could present a set of facts which are facts but which I have chosen very carefully to reflect an opinion which may not entirely be in any sense balanced.
A.No, absolutely. I think that's I think it's particularly in areas I was thinking about this beforehand. For example, in the reporting of this Inquiry, media organisations themselves have interest because they're reporting about other media organisations and they may choose to select facts which present their competitors in a certain light. That could be seen as the interests of their own organisation colouring how they're presenting the facts. It may be seen as the political outlook of the organisation so commercial interests, for the first, political outlook by the second and I think that's where it's important, where you're attempting to present the news and give your readership information about what's going on, that the opinion side of the newspaper shouldn't intervene. LORD JUSTICE LEVESON Yes, well, I understand. As I say though, the problem is that there isn't a bright line between fact and comment.
A.No, no, no. I mean, I accept that, that there's grey areas in this. I'm afraid ethics is full of grey areas. LORD JUSTICE LEVESON Yes.
A.But I still think nonetheless you can you know which bit of the newspaper is the comment section and you know which bit is the LORD JUSTICE LEVESON Although the code actually creates its own bright line, the requirement to distinguish.
A.Yes. Yes; yeah. MR JAY You make it clear that freedom of the press is not the same as freedom of expression, although there may be points of contact between them yes.
Q.Can I ask you to develop the point that freedom of the press can, in certain circumstances, inhibit freedom of expression?
A.Well, I was thinking there particularly about the opinion side of things, actually, so the extent to which I mean, even the heavyweight newspapers now have a lot more opinion columns than they used to. But even though you're presenting a number of opinions in the newspaper, there's only a small number of people who get to write for those newspapers and therefore if the main and there are a small number of newspapers. Now, if those newspapers' ownership is restricted, the way in which freedom of expression might be inhibited is that some people might not actually have access to this. So although opinions are being presented, there are certain types of opinion which are systematically excluded, either because of the ownership structure of the press or the ownership structures and the editorial structures taken together. So you need a diversity in the press as well as freedom in order to maintain genuine variety of expression or to ensure that the whole range of opinions is reflected.
Q.But is the issue this: that if the press isn't sufficiently plural, not sufficiently diverse, it means that certain opinions will not be expressed?
A.Yes.
Q.But the mere fact that the press expresses opinion, can that crowd out other opinions or is there, in effect, an infinite number of opinions? We're not talking about a commodity which is finite in number and therefore there is no objection to the press expressing arguably limited opinions with a loud voice?
A.I think that I don't think actually there's in print, there are an infinite number of things that people could say. I think on most important questions there's probably a limited number of reasonable things that people could say. It's more a question of: are the structures of the press, as well as being free, sufficiently diverse to ensure that the reasonable things that could be said are represented? So to take ethical matters, for example I mean, I think that there is more discussion of medical ethics in the newspapers but I think sometimes certain types of opinions on key ethical issues are not so well represented as others.
Q.Thank you. Ethical duties of the press in their public role. It's under question 7, slightly out of sequence. Is it inconsistent or consistent with the notion of a free press that the press should nonetheless owe ethical obligations?
A.No, no, I think that's I mean, I think freedom and responsibility are not incompatible notions. What I suppose I'm principally behind the notion of freedom in my account is freedom from censorship, from authorities coming in and telling the press what they may or may not say with respect to output, but they may nonetheless have a number of responsibilities they need to respect in producing those outputs. I think that's yeah very important. No, I don't see them as inconsistent.
Q.Yes. The sort of responsibilities you have in mind, on the your document doesn't have internal numbering. It's our page 00913, but on the second page of the section, which is dealing with responsibilities, it's question 7.
A.Mm-hm.
Q.You itemise some of these: "(a) Obligations to readers and consumers of accuracy, rigour, honesty and truthfulness." And then (b): "Similar obligations follow to those who are reported on, whether as stories or images, whether as primarily or secondary parties."
A.Mm-hm.
Q.Then there are obligations not to interfere with private rights.
A.Mm.
Q.In terms of the crucial issue of balance, you go on to say there isn't a simple algorithm for resolving conflicts. But what are the general principles which are in play, resolving conflicts in this domain?
A.Well, you have how important the information you're wishing to present is, and the importance will the public good has a range of it might be important to making decisions politician decisions about education, health, welfare, so on. It could be important for preservation of security, and you're balancing that against the fact that in some of these obligations there are kind of side constraints, so about what you may do to children and so on. Some of these obligations are not side constraints but requirements that in presenting that information, you do so in tender ways. Going back to the last point liberty, freedom and responsibility it's not licensed. Freedom is not licensed, and that's the way in which all these responsibilities bear on how you exercise your freedom. So you have those guiding aims of the media that I set out at the beginning holding people accountable and presenting information serving those roles and then these constraints of two sorts.
Q.When you refer to the importance of information, obviously the more important the information is, the less restriction upon the dissemination of it you would like to impose?
A.Yes.
Q.That's obvious.
A.Yes.
Q.But may there be a distinction then between what the press does in terms of its core function, which is to contribute to the public good in a democratic society, and some of the other functions of the press, which may be to entertain?
A.Yes, exactly.
Q.But if you're talking about entertainment, then you're more likely to be looking at possible constraints?
A.Exactly.
Q.Because other people's rights may come in and of course, the nature of the information is, by definition, less important.
A.Absolutely, yes. I suppose what I'd say, just going to that I mean, it's difficult to I mean, one has in mind these general principles but elaborating and fleshing them out is a very much a case-by-case matter, on a sort of casuistical approach, helps people to come to appreciate what counts as significant and what counts as less significant and so on, and that's partly why I think one can have these codes but for them to be lived codes, people have to think through what these slightly abstract notions mean and that is, as I say, partly casuistic and experience, and therefore developing sort of a kind of practical wisdom in that light. LORD JUSTICE LEVESON But you've had to do that in the other work you've done, I notice in relation to your work with accountants.
A.Yes. LORD JUSTICE LEVESON So that's thought the practical implications through to a very different type of endeavour.
A.Yes. Well, I suppose I'd say the thing that was more analogous would be the also with the engineers, where there was I worked with the engineers and the Royal Academy of Engineering came up with a statement of four ethical principles which were quite abstract, and what we did with them was produce a guide to those principles which was a set of case studies to try and make them lived for practising engineers. LORD JUSTICE LEVESON I think I knew about the accountants.
A.Yes, that's right. That's the one I sent through because that was very much about emphasising the importance of culture in organisations, and part of developing that culture is allowing people to think these things through on a case-by-case basis and discuss them. LORD JUSTICE LEVESON I'm only proving I've read it.
A.Sorry. MR JAY I suppose the difficulty with a code is that there's always a tension between setting out principles at a high level of generality, which people will naturally understand, on the one hand, and setting out too much detail on the other, because if you set out too much detail, you know from experience you run into difficulty because individual cases may be more subtle and you're excluding the possibility of the casuistical reasoning and you're building up a corpus of caselaw, if you like, from experience, on the other. Do you have a view as to whether the existing Editors' Code, without looking at the detail of it, strikes the right balance between those two competing objectives?
A.Yeah, I don't I think it it's my yes, I think the concern I have some concern about the code but not particularly about it going into too much detail and or too little. I think it's clear enough in that sort of way. I suppose I felt that for me, it's a problem when I read it through, its problem was that it reads primarily as a list of prohibitions with a slightly hand-waving reference to the public interest. If I was a practising journalist, I would find it difficult to see how the whole thing hung together in terms of my professional in terms of developing good judgment as a professional journalist.
Q.We should come back to that because that's a very important point.
A.Yes.
Q.I need to pick up some other points before we get there, as it were. Question 4. I looked at ethical duties, question 7, out of sequence but at question 4, you make some points there about maximising the overall public interest and the dangers, for example, in concentrating ownership in a small number of individuals. Can I ask you, please, to develop the points you make under this heading, Professor Megone?
A.Right. It's an issue we've already touched on about the concentration of a small number of journalists of owners and editors may have an effect on the opinion side of a press' activity and the range of opinion that might be presented. There's also questions with respect to ownership about possibly about the commitment of the owners to the society in which they live, and therefore their so if you have foreign owners, it might be the case that they have less of a commitment to a common good in that society. They have less interest in it. They don't live in that society; they live somewhere else. The pressing nature of the common good in that society may seem less important than perhaps commercial interests and so on. At least it's something that if one were the foreign owner, one would have to be aware of. Even with respect to presentation of facts of your information, I think a range of media organisations serves as one of the ways one of the checks on that. So competing newspapers can actually serve to qualify, correct and so on the factual information that is presented by showing that one newspaper has missed out crucial things and so on and so forth. So I think in various ways, competition between the media in both representation of views and with respect to facts is enhanced by diversity.
Q.Thank you. You also refer to relationships between members of a free press and public figures and the sort of issues and problems which might arise there.
A.Yes.
Q.Could I ask you, please, to expand on that? Top of our page 00909.
A.Well, I suppose that the press is presenting information to the public. There are lots of people who, for different reasons, have an interest in conveying their information and in some cases their views, their opinions to the public. So there will be politicians, business people, perhaps senior people in other positions of influence and organisations, maybe cultural organisations, who want to get certain information across to the public and are competing for space with the medi
A.So they will have an interest in having certain kinds of relationships to ensure that that information gets across, and I think journalists have an interest in that as well because it helps them gives them crucial conduits to getting at certain kinds of information that they want to get at. But clearly, unless you're careful, these potentially valuable, mutually valuable relationships can be distorted in certain ways, so that on the one hand the journalist might be encouraged to think that they, by their the people who are their conduits, that they should present information in certain sorts of ways that are more amenable to those people, and on the other hand, it could be the case that those people are in positions which could affect the media organisation's own operation and they may be encouraged to think that if they do that in certain sorts of ways they will get a better press, you know. So it's a natural relationship to have between politicians, business and the like and the media, but it's one that can be needs to be handled with great care.
Q.Mm. That leads on to question 5. You were asked for your views on the extent to which the overall public interest is currently well served, both in principle and in practice. You make an interesting point in the paragraph beginning: "In my view, the press itself at present assumes too quickly that freedom of the press is sufficient to guarantee the press serves its distinctive role in contributing to the public interest." That argument is or has been advanced on occasion before us, but can I ask you, please, to explain your think the press' assumption is too swift?
A.I suppose if you go back to the PCC code of ethics, it has although I don't think it has a very satisfactory account of the public interest, it explicitly states that freedom of expression is itself part of the public interest, and I think that it's and that, the public interest, qualifies a number of the constraints that are placed on the media in that code, and I think a kind of slippage can happen in which this freedom of expression is seen to be the primary public interest the public has in the press, and then that can then seem as liable to trump many of the other side constraints.
Q.Mm.
A.So and if one's a journalist and one values being allowed to write what one thinks is important, yes, by there's a kind of, as I say, a natural slippage in which this freedom of expression can be seen to be the dominating aspect of one's code. LORD JUSTICE LEVESON Should it be rebalanced? And if so, how?
A.Well, it's yes, I think it should. I mean so when I read the code I was a little properly, you know, thinking about it for this particularly for this Inquiry I read it more cursorily for teaching students it is striking that there are parts of that code which explicitly rather strongly regulate against, prohibit some sorts of activities which have clearly been going on, as has come before this Inquiry, and I think that what needs to be done is that the people who are the journalists and editors and media organisation owners whose activities fall under this code need to think through more carefully how those different parts of the code bear on one another. So it isn't it's partly having a clearer sense, a broader sense of the public interest and understanding the how free expression contributes to serving that public interest, it isn't itself the whole of the public interest, and then it's secondly recognising that although the public interest in providing information and holding people to account is very important, there are these very serious other constraints and they do need to be taken very seriously, and that freedom of expression doesn't dominate. So, well and how well, as I say, I think that part of the problem must be the culture of the organisations. It must be that in the I mean, to take the phone hacking which has come before you. My amateur suspicion is there must have been people in organisations where this was going on who were aware of it and must have been concerned but didn't raise their voices. One can think of this happening in other organisations, in hospitals and so on, where things have been going on and whistle-blowing doesn't happen in this culture. So I think there must be with a cultural issue about the capacity of people to raise concerns about when they think that certain things are being done which shouldn't be done, even though that would prevent certain things being freely expressed. So I think it's very much about this code becoming much more a lived code in organisations and an open culture in which people can express their concerns. And the editors, of course I've said something about the responsibility of editors and so on and part of the structural things you might do LORD JUSTICE LEVESON But is it simply the responsibility of editors? You said, in the course of that answer that what needs to be done is that the people who are the journalists, the editors, the proprietors, they need to get to grips with it, but is this something that also ought to happen externally or should it just be left to them to do?
A.Again I think there should be a reporting process to an external organisation but I think the purpose of that reporting should not at the moment, it seems as if the Press Complaints Commission is primarily tasked with dealing with post hoc complaints and allowing people then to have an answer or to have remedies. So there might be something which is addressed a process of reporting which was designed to focus on the character and culture of the organisations. So the suggestion I had, which is a bit like goes on the corporate governance reporting that goes on in business I think the corporate governance reporting in business could be better done, but I think that there could be something a report which the editor drew up each year which looked at the processes and the behaviours of the organisation against the objectives the moral objectives of that organisation to promote the public interest, and that would report to an auditor or an ombudsman, both about the structures and about the outputs or the effects of those structures on the behaviours of the organisation. So it would be yes, there would be a focus on the internal thing but you'd have a reporting mechanism. But the reporting mechanism wouldn't just be designed to deal with complaints; it would also perhaps be an annual kind of corporate governance report which would encourage the development of an appropriate culture. So it's a kind of reporting mechanism designed to focus on character enhancement rather than complaints. LORD JUSTICE LEVESON In relation to the development of the code, we heard from Ofcom last week that actually they consider it unimaginable I think that was the word that Mr Richards used that, as it were, those in the business at the time should sit on these bodies, that it had to be done independently, perhaps with people who had been in the bodies but not currently serving. Do you have is there an ethical or a philosophical
A.Well, I suppose from my it touches on the interdisciplinary nature of my work. LORD JUSTICE LEVESON That's why you're here, Professor.
A.Yes. I think that in this area, if you just had someone like me as an ethicist, for example what I found in other works, say in engineering ethics, is I lack the experience of what it is like being that kind of person. I am unaware of the pressures they're under, and so I think you would need, as you've suggested, people who are experienced in the media perhaps, as you suggest, not current but people who are sufficiently close, so recent members of the media to know to not have to have views about how culture and practice can be enhanced which are not you know, philosophers, we're often criticised for being I won't say cloud cuckoo land but in an LORD JUSTICE LEVESON An ivory tower.
A.At a remove, yes. So my work is enhanced if I'm doing it together with people who can qualify and inform what I am saying by detailed knowledge of what it's like to be yeah. But maybe, as you say no. MR JAY You had a number of specific points to make about the code. Indeed, these will be valuable points, given your interdisciplinary experience. You can draw on codes from analogous or otherwise areas. But one point you made is the code appears to be full of prohibitions and that's a defect. Why is that a defect?
A.As I say, I think it encourages a view of ethic as coming into the picture when things are being done wrong, going wrong, and then encourages the view that the complaints commission the press I forget the name that you go to it to register a complaint, rather than the purpose of a code as something like to develop good professional judgment, when ethics is a key part of good professional judgment, as well as, of course, experience of assessment of facts and so on and so forth. So I think you need a code which has a more expresses in a more positive way the positive contribution that the press plays to the common good, contributes to the common good, and then the restraints on the ways in which you may behave in pursuing that public good, and I think the role of those constraints then becomes a bit more intelligible if you're clear about the public good, the importance of what you're doing, and the extent to which those constraints may sometimes be overridden becomes more intelligible, if you're clear about the good. So, yeah, those are the principle concerns. In ethics, we have a positive connotation as well as a negative one and if there's a kind of over-arching understanding from the code rather than a kind of piecemeal set of "don't to this, don't do that"
Q.In terms of positive contribution, would you be including within that a public interest in freedom of expression itself and what else, in any event, would you be including?
A.I'd want to explain the role of freedom of expression in terms of its importance in contributing to the two over-arching goods that I have claimed. So freedom of expression's important because the press has this role of presenting information to enable us to make choices about all aspects of our life. What that means is we don't want powerful organisations must not be in a position to stop certain information getting to us, whether it's government or business or and secondly, on that side, freedom of expression is important in allowing a diverse set of opinions to be presented. There's the opinion and fact side. Then freedom of expression is important in order to allow us to hold people accountable. So there mustn't be people who can stop certain things getting out because if those things were to get out, it would be bad for them and the responsibilities they have to us. So that's the way I would say it comes in. It's understood as a mean, as serving an instrumental role in the service of these this greater good.
Q.How would the code be framed so as to foster the right sort of culture you were referring to? It's not just a culture which understands the proper contours of freedom of expression but it's a culture which is beneficial in a whole range of other respects. Because one sees that in, well, a whole host of professional codes. Quite a lot of the code is about inculcating correct behaviour and correct judgments but if that's important for journalism, editorial practice, how would the code be drafted so as to do that?
A.That's somewhat more emphasis on certain aspirational things. So if you take the accuracy section of the code, the press must state they're not printing inaccurate or distorted information, I suppose that one could place that more positively, that the aspiration to present the facts, to present the truth impartially I can't do it off the top of the my head, but I think there would be a way of stating that in a more aspiration role as a sort of high calling to accuracy and rigour. So some of it would be on the emphasis on aspiration to honesty, truth, rigour, not just mentioning all the things you mustn't do in pursuing those things. So getting a sense of, yeah, positive attributes of LORD JUSTICE LEVESON To provide the context better to assist to justify the negatives.
A.Yes. Yes. LORD JUSTICE LEVESON Yes. MR JAY Thank you. Finally, the other factors, aside from the code, which might create the right sort of culture, could you summarise those for us, please?
A.Yes. So this is in the yes. So issues about leadership. That, from this other work in other organisations, seems tremendously important. LORD JUSTICE LEVESON And this is the accountants?
A.Yes, it is, absolutely. I talked about an open culture, which I think does need unpacking, but that would include opportunities for discussion of difficult issues, perhaps a confidential something to whom people could turn within an organisation if they had concerns for advice as to how they would pursue those concerns, proper whistle-blowing procedures. I mean those are rather negative. Rewards for positive behaviour. I think we have a list of ten, but the most important we would say are leadership issues. LORD JUSTICE LEVESON And what you don't think is necessarily the answer is simply training?
A.Well, yes. We want to say that with some care. There are certain types of ethics training which are not very effective, and they won't work just by themselves. You can't just send people off for an afternoon and we've had this reported to us in a range of other contexts: don't just send people off for an afternoon and expect ethics training to change, because they'll go back to an office where there's a certain kind of culture and accepted norms, and the accepted norms will dominate anything they might have thought about in that afternoon behaviourally, so there's kind of a psychological claim incorporated in that. LORD JUSTICE LEVESON Yes, it's not just a question of ticking the box: had the ethics training, therefore that's done; now I can go back to doing what I do.
A.Exactly. However, we would say that ethics training incorporated within or additional to these other things, so, for example, bringing some people like a philosopher and potentially another journalist working together and going through some challenging case studies within an organisation which is taking these things seriously can enhance and aid people because you do need time to reflect on these challenges and often in the day-to-day hubbub of working life you don't have that time, so as a kind of enhancement but it has to be with these other things, leadership and so on. LORD JUSTICE LEVESON Thank you. MR JAY Those are all the points I had arising out of Professor Megone's evidence. LORD JUSTICE LEVESON Professor Megone, thank you very much indeed. You said it's quite difficult to think of things off the top of your head and I entirely recognise that. I think the most important material that you provided us with is extremely valuable. Your oral elaboration assists, but if there's anything you do want to add in the light of questions you've been asked or you've thought of, please don't hesitate.
A.Thank you very much. LORD JUSTICE LEVESON Thank you very much for coming. 2.15 pm. (1.15 pm) (The luncheon adjournment)

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Witnesses

Dr Rowan Cruft

Academic

Gave a statement at the hearing on 16 July 2012 (AM) ; and submitted 1 pieces of evidence

Researcher and senior lecturer in philosophy at Stirling University since 2002. Offered evidence to the Inquiry on the nature of ethical journalism and the "public interest".

Professor Jennifer Hornsby

Academic

Gave a statement at the hearing on 16 July 2012 (AM) ; and submitted 2 pieces of evidence

Professor of Philosophy at Birkbeck, University of London at time of Inquiry, with interests in philosophies of the mind, language and feminism. Submitted evidence relating to questions of freedom of expression and the public interest.

Professor Chris Megone

Academic

Gave a statement at the hearing on 16 July 2012 (AM)

At the time of giving evidence, Megone was Professor of Interdisciplinary Applied Ethics at Leeds University, having led a successful £3 million bid for a new Centre of Excellence in Teaching and Learning in Inter-Disciplinary Ethics, of which he became director. Told the Inquiry that there was a significant public interest in a free press, but the social purpose or interest which the press serves is not guaranteed to be achieved simply by the freedom given by lack of censorship. The public had an interest in a press which was more than simply "free" in that sense, he said.

Professor Sue Mendus

Academic

Gave a statement at the hearing on 16 July 2012 (AM) ; and submitted 2 pieces of evidence

Welsh academic specialising in political philosophy and, at time of Inquiry, Professor Emerita of Political Philosophy at the University of York. Vice-President (Social Sciences) of the British Academy (2008 to 2012), Mendus covered the philosophical area of conflicts between freedom and the public interest.

Professor John Tasioulas

Academic

Gave a statement at the hearing on 16 July 2012 (AM) ; and submitted 1 pieces of evidence

Greek-Australian moral and legal philosopher. Quain Professor of Jurisprudence in the Faculty of Laws, University College London at time of giving evidence. Offered his thoughts on the difference between rights and interests. Gave his view that some information can be in the public interest without there being a corresponding right to have access to that information (just as it could be in your interest to have your friend's kidney, but it is not your right to have it).

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History

Morning Hearing on 16 July 2012

Hearing Transcript

Witnesses

Themes

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