(10.00 am)
LORD JUSTICE LEVESON
Good morning.
MR JAY
Good morning. The first witness today is Mr Philip Coppel, please.
LORD JUSTICE LEVESON
Thank you. MR PHILIP ANTONY COPPEL (sworn) Questions by MR JAY
MR JAY
Thank you, Mr Coppel. Your full name, please?
A. Philip Antony (with no H) Coppel.
Q. Thank you. You've kindly provided us with a statement dated 28 June 2012. It starts at our page 01178. Are you content to confirm the truth of the facts and matters set out?
A. I confirm the truth of facts and matters.
Q. Thank you. Now, Mr Coppel, you are a barrister practising at 4-5 Gray's Inn Square. You were called to the bar in 1994, appointed Queen's Counsel in 2009. You practise in the realms of public law and commercial law with a particular interest in data protection and freedom of information; is that a fair summary?
A. Correct.
Q. You were asked to deal with a number of aspects of the Data Protection Act so far as they bear on the press and the scope of your evidence. That is set out in paragraphs 3 and 4 of your statement; is that right?
A. Correct.
Q. May we move straight to paragraph 7, the introduction to the DPA, in particular the background. I'm going to ask you to assume that your listeners may or may not be that familiar with the minutiae of data protection law. All the lawyers here will carefully have pre-read your statement but no everybody
A. I understand.
Q. watching this, so we need to find the right balance between too much detail and too little. Could you tell us in other words, please, about the background to the first Data Protection Act, which was, of course, enacted in 1984 in the light of international, European and common law obligations?
A. The 1984 Act was not the product of a directive, unlike the 1998 Act. It emanated from the parliament of this country, although it was responsive to certain international moves which had taken place in the 1960s and 1970s and 1980 in particular, when the OECD issued guidelines to countries as to the manner in which personal data was to be handled by states that were members of the OECD, of which the United Kingdom is one.
Q. Thank you. The OECD, of course, is the Organisation for Economic Co-operation and Development. Does that cover the same entities as the EU or is it wider?
A. It's wider than the EU. So for example, the United States, Australia, are all members of the OECD.
Q. Thank you. The Data Protection Act, which is the first piece of legislation in this area, was enacted in 1984, and you say in paragraph 11: "It did provide some protection against mishandling of personal, private information." And there was litigation in the House of Lords in relation to that. Could you tell us, please, in a nutshell, what the protections were in the first Act?
A. Well, the protections were more limited insofar as they didn't give much rise sorry, much opportunity for an individual to bring personal claims for abuse of personal information, unlike the 1998 Act. It was more concerned with the actual processing itself to ensure that it adhered to the requirements which were set out in the act, so in terms of what it gave the individual in relation to information that related to that individual, it was less than that which was provided by the 1998 Act.
Q. I think at that stage we weren't dealing with a commissioner; we were dealing with a registrar. The name changed between 1984 and just before the implementation of the 1998 Act in the year 2000? Is that right?
A. Yes, the office was called the Data Protection Registrar. It became the Information Commissioner, I believe, after 1998 through amendments effected by the Freedom of Information Act 2000.
Q. And what happened in the 1990s is that consideration was given to a new directive and in October 1995, the European Parliament, as you remind us, formally adopted the directive, but the UK abstained in the vote. Is anything to be deduced from our abstention?
A. Well, I couldn't possibly say, other than we didn't want to vote in favour and we didn't want to vote against, presumably.
LORD JUSTICE LEVESON
Yes, I think that's called mind-bogglingly obvious. Yes.
MR JAY
Following the directive, the Home Office, under the then Conservative government, issued a consultation paper. The government itself said it didn't see the need for the directive, but nonetheless, in line with its principles, had to consider implementation. There was then a consultation exercise. The directive required implementation by the end of October 1998, but the DPA was, I think, just before then with implementation on 1 March 2000; is that right?
A. I think it was enacted on 24 October 1998. There was a sunrise provision in relation to various parts of the Act itself, but it came fully into force on 1 March 2000.
Q. You make an important point in paragraph 15, which anybody who understands European law will be fully familiar with, but then not everybody will know the detail of this. You explain the directive is a harmonisation measure. There's nothing to prevent a member state from doing more, provided that that which is done more is not expressly prevented by some other provision of Community law, but a member state can't do less than that which the directive specifies.
A. Correct.
Q. Is that right? And that may or may not be relevant to Section 32, when we come to consideration of that difficult provision. The Lisbon Treaty. You deal with this in paragraph 17. What, please, is the significance of that apart from the fact it amended the Treaty of Rome?
A. The significance is that there is a specific article in there recognising the protection of personal data relating to an individual. So there is a more fundamental recognition than previously existed of the importance of protecting the individual's personal information.
Q. Thank you. The scheme of the Data Protection Act first of all you point out, paragraph 18, that the obligations, generally speaking, under the Act are imposed on government bodies, companies and individuals. So I think those concepts are self-explanatory. What may be a little bit more difficult is the matter caught by the Act: personal data. Could you explain for us, please, the concepts of data and personal data?
A. Data is probably best characterised as information, but unlike information, we think of data not necessarily being internally explicable. So if I draw the analogy of a jigsaw puzzle. We have a completed jigsaw puzzle. We say that's information. We see an image, and that's information. Data may be regarded as the individual pieces themselves. The shape of those pieces tells you how it relates to the other data, but it's only when you put them together that an ordinary person or at least most of the pieces together, that an ordinary person understands what it is that is being conveyed. Nevertheless, each of the individual pieces may be said to constitute data, and that is the distinction, metaphorically, between data and information. But it is, nevertheless, informative of something, albeit that you might have to assemble it with other data to get that information.
Q. Thank you. And personal data? Maybe that's a more straightforward one. It relates to an identifiable live and natural person; in other words, not to a body corporate?
A. Not to a body corporate, not to somebody who has deceased, and then the issue is whether something relates to them, and there has been authority in relation to how close the nexus must be between the data and the individual said to be so identified.
Q. Thank you. Certain species of data are in a special category owing to their higher sensitivity. Unsurprisingly, they are called "sensitive personal data". As you explain in paragraph 20, these relate to matters such as racial or ethnic origin, political opinions, religious beliefs, et cetera.
A. All the things you would expect to see treated more sensitively. In particular, health matters.
Q. The activity related by Act is called "processing". Again, in a nutshell, what is processing?
A. In a nutshell, it's basically any activity, including the state in which data is. So it means holding, getting, receiving, disseminating, publishing, manipulating or using in any way. It's as wide as it possibly could be.
Q. The Act bites on those responsible for the data in two ways. We have a data controller and a data processor. What's the difference between those?
A. The data controller is the guiding mind in relation to what is done or not done in relation to the data that is held. The processor is the one who may do the actual work but at the instruction of the data controller. So if, for example, the data was shifted off site from the particular entity the company, let us say it's the data controller who may tell the data processor what to do or what not to do in relation to those data and that's the difference between the two.
Q. Thank you. And paragraph 28: "The standard of processing required by the Act is defined through the data protection principles." Of which there are eight. Then you go on in paragraph 24 and following to explain each of these principles. Most of them are self-explanatory, but the first data protection principle can I ask you, please, to amplify that one? As you say, there are three requirements: the requirement to process personal data fairly, to process it lawfully, and then to meet at least one of the schedule 2 conditions, and when we have sensitive personal data, it's one of the schedule 3 conditions as well. But the concepts, please, of "fairly", "lawfully" and then these scheduled conditions?
A. "Fairly" is spelled out in greater detail in part 2 of schedule 1, and essentially it means with some sort of consent from the data subject. The data subject is the person to whom the information relates. There are let-outs specified in part 2 of schedule 1, but in general terms, that is what is meant by "fairly".
Q. "Lawfully"?
A. "Lawfully" means that it doesn't otherwise contravene the law. For example, there may be provisions which prohibit certain dissemination of information. There may be provisions that prohibit other sorts of activity in relation to information. Breach of confidence is said to constitute not lawful processing of data, and indeed a breach of the DPA itself is said to be not lawful.
Q. The schedule 2 conditions there are six of those, on my understanding. One we might focus on is condition 6(1), which, as you explain, embodies a balancing of the interest protected by the European Convention of Human Rights, in particular articles 8 and 10. So this is the balancing exercise we see in the realm of privacy more generally; is that right?
A. Yes. It brings into the mainstream of the first data protection principle that balancing between the two interests embodied in Article 8 and in Article 10.
Q. Is it right to visualise data protection law as a detailed particularisation of Article 8 privacy law in the specific limited context of personal data?
A. It probably does more than just that, but certainly it does do that.
Q. It does at least that?
A. It does at least that, I agree.
Q. We're not going to look at the other principles; they'll speak for themselves. Those are the principles which bring one within the Act, and within the Act explain what a data controller and data processor must do, but there are also exemptions from those or some of those requirements. Paragraph 35 of your statement. You say, first of all, that the directive gave Member States latitude in defining the extent of exemptions. Can you please explain the degree of latitude?
A. Well, the example that I give specifically later on in my statement is the latitude given in relation to the press exemption, where it is left up to Member States as to how they choose to give effect to the broad principle which is stated in the directive. So the directive itself recognises a contest or competition between Article 8 and Article 10 rights. How that contest is to be resolved is left up to Member States, but contest there is, and a resolution is expected by the directive itself.
Q. Could you explain, please, the difference between a pure class-based protected interest and a class-prejudice-based protected interest?
A. A class-based a pure class-based interest simply looks at the nature of the information itself and doesn't require that it's processing or, let's say, its disclosure cause any harm. For example, if I say that personal information is purely class-based if it gets released into the more widely. Class plus prejudice require it to belong to a class and if you do something with it, some harm will result. So, for example, you might have information that relates to the defence of the country, the disclosure of which would be harmful to national security interests. So there's the class defence, there's the prejudice harmful to national security interest. In fact, there isn't one in those terms there is a national security exemption but that is one which embodies class plus harm.
LORD JUSTICE LEVESON
Can you give me an example from personal circumstances in relation to personal data?
A. Well, if we look at the exemptions themselves. I don't think all of them I've included in fact, I know I haven't included all of them in the schedule to my provision, but, for example, section 29 provides an exemption for the prevention or detection of crime or the apprehension or prosecution of offenders, where the disclosure of the information or otherwise prejudice or otherwise processing would be likely to prejudice any of the matters identified in this subsection. So it's of a nature and the processing is likely to harm what the protected interest, namely the detection of crime, the apprehension or prosecution of offenders.
LORD JUSTICE LEVESON
Yes. I understand what you are saying, but I'm just going back to the point that Mr Jay made at the beginning. It may be that those listening to your evidence will not be able to colour the language in which you have described the legislation with an example in their mind that explains precisely the point you are seeking to make. Now, there's a challenge. Can you think of an example that would
A. Be pure class-based? Well, journalism is one of the pure class-based exemptions. I provided it falls within the definition of special sorry, journalistic, literary or artistic material, then it doesn't actually require any harm to those particular interests ie journalism, literature or art to result from the processing in order for the exemption to bite.
MR JAY
Thank you. The rights of the data subject against the data controller. The data subject, of course, is anybody whose data is held by a data controller. So it would be a private individual, ordinarily, but it could, I suppose, be a body corporate.
A. No, it's a private individual, alive and well. Well, alive, anyway.
Q. Yes, sorry, you've told us that already. There's a right, first of all, under section 7. Could you, please, summarise the nature of that right, Mr Coppel?
A. The right is often termed the subject access right, but in fact it has four separate sub-rights within it, namely: to be informed by the data controller where the personal data of which the individual is the data subject are being processed by the data controller and to make that more intelligible, if we simply think of processing in this instance as being held by the data controller. So you write off to the data controller and essentially the first limb of the section 7 right is: "I hold or I do not hold any personal information relating to you." That's the first aspect of it. If yes to the first aspect or limb, to be given a description of those data it's self-evident what that means then thirdly, to be given a copy of those data and a statement of their source. Generally speaking, when people exercise their Section 7 right, that's actually what they're after. "I want to see what you, the data controller, have got in relation to me." And by giving that information, the data controller has effectively complied with the first three limbs in a single Act. Then fourthly, where those data are being used to evaluate a person's suitability needed for the making of the decision to be informed of the logic involved in that decision-making process. In my experience, very rarely are people interested in the fourth limb. Really, what they're interested in is just getting what the data controller holds on themselves.
Q. Thank you. The courts have had a go at narrowing the apparent breadth of the right and the courts have acted in a similar way elsewhere. We might come back in due course to the possible policy reasons for that. The extent of the narrowing you explain in paragraph 40, but the detail of that I don't think we need address now. The second right in paragraph 41 is a right against the data controller who has breached the data protection principles, and that right, if successfully exercised, gives you a claim for compensation and a claim to rectify, block, erase or destroy the personal data which has been generated in violation of the right, if I can put it in those terms; is that correct?
A. Essentially, section 4(4) creates a statutory duty which we know where there's a statutory duty which an individual can enforce, it constitutes a tort and the Act describes what the remedies are for that tort.
Q. Thank you. In terms of what the courts have done in relation to this right, paragraph 42, they've narrowly interpreted the matters for which compensation may be ordered so there isn't a claim for general damages, there's only a claim for pecuniary loss and also the levels of damages, as we can see from the examples given, have not been massive.
A. Yes. It's fair to say that this is where the efficacy of section 4(4) has been diminished. In particular, the requirement that damage be confined to pecuniary loss has obvious importance for an Act like this, which is concerned not necessarily with things that sound in pecuniary loss but are concerned with an individual's privacy.
LORD JUSTICE LEVESON
In most circumstances, it's unlikely to cause pecuniary loss, isn't it?
A. Correct. Very rarely will it cause pecuniary loss, and only by, very often, imagining circumstances is that going to be the case. But it's the invasion which I make no bones about it; I say it's that invasion of privacy which falls to be compensated and that's very difficult, because unless you have a tariff which is generally stated and generally applicable, it's very difficult for an individual judge to say, "Well, how much is this worth?"
MR JAY
The level of damages may well be highly relevant when we look later on at your evidence as to the possible extension of the role of the Information Commissioner. Just remind us, please: the ?50 awarded to Mr Douglas and Ms Zeta-Jones - I think they were married at that stage, or was it their wedding?
A. It was their wedding which was disclosed through photographs.
Q. In either OK! Magazine or Hello! magazine I don't recall which
A. Something like that.
Q. Why was it only ?50, in a nutshell?
A. Because well, the explanation given, so far as one can ascertain, is that both of them were high sorry, were figures of a high public profile and true it was that their wedding was by invitation only and intended to be kept private. However, they having the profile they do, it was thought that this was the correct measure of the damage which they had suffered through breach of their rights under the Data Protection Act.
Q. Fair enough. The third right, the right to compel a data controller to cease or not to start processing data, that's under section 10. It's necessary to go into that. Fourth right, section 11, the right to compel a data controller to cease or not to start processing personal data for the purpose of direct marketing. Again, we needn't going into that. The fifth right, section 12, a right to require a data controller to ensure he takes no evaluative decision concerning the individual based solely on automatic processing of the personal data. Again, that's unlikely to be of great relevance to journalism. Can we move to the position of Commissioner and explain first of all what the obligation is under the directive and what the United Kingdom has done in reaction to that obligation?
A. Well, the directive requires each member state to ensure that there is a public authority or a public officer who has both investigative and policing powers in relation to the implementation of data protection law within that member state, and they are characterised essentially as being guardians of the rights and freedoms which are embodied in the directive and which are supposed to find expression in domestic legislation.
Q. Presumably in line with general standards of EU law, the Commissioner must have a degree of independence; is that right?
A. Correct.
Q. As we've seen earlier in relation to the directive, there's nothing to stop Member States doing more than that which the directive requires in relation to the Commissioner.
A. I agree.
Q. His or her functions may be greater. Now, the powers of the Commissioner depend on whether we're within the special purposes of which journalism is an example or whether we're not. If we're not within the special purposes, then there are four main avenues of enforcement. These basic avenues of enforcement I ventured to take up with Mr Thomas when he gave evidence back in December, and I probably had another go with Mr Graham, but can you remind us, please, of the essential avenues starting with section 42?
A. Section 42 provides for assessment. That's initiated by an individual who believes that he's been directly affected by the processing of personal data relating to him or herself. Then, if that is done, the Commissioner is required to make the assessment but the manner in which that is done is left in the hands of the Commissioner himself. The outcome of that the Commissioner must obviously let the person who has made the request for an assessment know. Secondly, under section 41A, the Commissioner may serve on a public authority an assessment notice, and the object of that is to enable the Commissioner to determine whether the data controller is complying with the principles. Then thirdly, the Information Commissioner can serve what's known as an information notice, and this is to enable the Information Commissioner to understand more about what the data controller is doing. It's really as a prelude to taking further steps thereafter. The individual or the body which has been served with the information notice obviously has to supply the information which is requested in the notice. Then fourthly, and very often finally, the Commissioner can serve what's known as an enforcement notice and this is to compel the data controller to do things or to desist from doing certain things which the Information Commissioner considers to be non-compliant with the Act.
Q. We know that the Commissioner didn't exercise any of those powers in relation to Operation Motorman. How often are these powers exercised?
A. Well, I don't have any first-hand knowledge, but it would appear on the ground very, very rarely indeed.
Q. As you point out in paragraph 53, their general obligations under section 51 of the Act again, that was a provision that I took Mr Thomas to but that empowers the Commissioner, for example, to issue guidance and recommendations both in general and in particular; is that right?
A. Correct.
Q. A power to carry out audits? Or not?
A. I don't know one way or the other is the answer to that.
Q. I think we've seen elsewhere in section 51, if my memory serves me right, a power to report to Parliament either annually or in a special case. Of course, the two reports in 2006, "What price privacy?" and "What price privacy now?", were issued in compliance with that power, weren't they?
A. Correct.
Q. What is the position in contradistinction, Mr Coppel, if we fall within the special purposes, in terms of what the Commissioner can do?
A. It results in a disapplication of the power to serve an enforcement notice that's the first important thing that it does and then secondly, where an individual has brought a claim, a section 4(4) claim for breach of statutory duty through the DPA, then the court must stay those proceedings until there has been a determination under section 45, and section 45 is a special procedure relating to the so-called special purposes, ie journalism, literature and art, to see whether in fact that is the case. In practice, what happens is that it becomes so convoluted the individual disgruntled has commenced proceedings under section 4(4). If they if the point is taken that these are special purposes, then a satellite set of proceedings is effectively launched, namely the section 45 one. That, if one ever gets to the end of it, reaches its end, it might come up with a conclusion. If the conclusion is in favour of the individual, then they resume their claim, by which time, of course, matters have marched on significantly and it may be of cold comfort, any such relief
LORD JUSTICE LEVESON
They may have lost interest in living by then.
A. Quite possibly, and particularly if one realises that at the end of it all one is going to get like, for example, Catherine Zeta Jones, ?50, one can well understand why interest might be a little bit diminished.
MR JAY
The adjudicator of the claim is the Commissioner not the court; is that correct?
A. Under section 45; correct.
Q. You explain in paragraph 55 the position under section 45, subsection 1: "Where it appears to be the Commissioner that the personal data are not being processed only for a special purpose or are not being processed with a view to the publication by any person of any journalistic, or artistic material, the Commissioner may make a determination to that effect." So the adverb "only" means what, Mr Coppel, in this context?
A. Exclusively.
Q. Exclusively. So if you have mixed special purposes and not special purposes, then the section 45 adjudication or determination is not made in favour of the data controller; is that correct?
A. Subject to paragraph (b) also of 45(1) being satisfied.
Q. Yes. Can you explain now, please, the reach of the exemption in Section 32, because this is highly relevant in the context of lines of questioning I embarked on with Mr Thomas and with Mr Graham. It may be that I was a little bit boisterous in the context of some of the points I was taking because I overlooked and arguably did not know about an important Court of Appeal decision which is relevant here, but can you
LORD JUSTICE LEVESON
Only you know whether you knew about the decision.
MR JAY
That's true.
LORD JUSTICE LEVESON
It's hardly arguable.
MR JAY
Yes, well, to be frank, I did not know about it.
LORD JUSTICE LEVESON
I see.
MR JAY
Or rather, had forgotten it, because I had, of course, read the Campbell case in the House of Lords. But anyway, we're in danger of digressing. First of all, please, the way in which the Data Protection Act has affected the requirements of Article 9 of the directive, paragraph 57 of your statement?
A. Is essentially through section 32. The first point that must be made in relation to the exemptions which are set out in part 4 of the Act is although there are a list of exemptions, what they exempt from varies from exemption to exemption, and the basic statement of what gets exempted is set out in section 27. So we see certain protections which are effected through the Act are disapplied and others remain in force. What is notable about Section 32 is its complete exemption from the larger part of the protections which are given by the Act, and thus we see in 32(2), which enumerates what gets disapplied, it's the data protection principles, except the seventh data protection principle, which for most people doesn't loom large, whereas the other exemptions will very often simply exempt a lesser number or fewer number of the data protection principles. So that's the first thing to note about Section 32, is its almost complete disapplication of all of the protection which is effected by the Act itself. Then secondly, in order for the exemption to be engaged, the three paragraphs in 32(1) have to be satisfied, of which two of them are the belief of the individual themselves so in other words, the press being a judge in its own cause, it might be said and it's only the first that is to say, the processing that's undertaken with the view to the publication by any person of any journalistic, literary or artistic material which is purely objective.
Q. Thank you.
LORD JUSTICE LEVESON
That's not very much of a hurdle if you're concerned with a journalist.
A. I agree. Very much so. I've expressed a view in relation to the effect of Section 32 but undoubtedly once you're in Section 32 territory, then the protection which is given to an individual's privacy almost entirely falls away. All you have to do is touch Section 32 in some way, shape or for form, and the contest which the Act is supposed to embody between the right of expression, freedom of precision, and an individual's personal privacy has all been tilted one way.
LORD JUSTICE LEVESON
Because it's the subjective opinion of the journalist?
MR JAY
It's "reasonably believes".
A. "Reasonably believes".
LORD JUSTICE LEVESON
So there's an be objective
A. Colour which is introduced, but nevertheless it's not difficult, I would have said, for most journalists and certainly that's what the authorities have indicated, and one which seems to have been missed for a point, that it is very much for the press to make their own judgment in relation to Section 32
LORD JUSTICE LEVESON
But that judgment you say it's objective. In one sense, it's objective, but it's objective based upon facts within the knowledge of the journalist, which might include, for example, information that he's received from a source which is unidentified.
A. Correct.
LORD JUSTICE LEVESON
"I have heard this from my source, which of course I'm not going to tell you about, which actually brings me within all these protections."
A. And in any event, it may be that when you drill down to that source itself, it is found to be not a good source, but nevertheless the belief which is held by the journalist themselves, who has not had the opportunity of drilling down, is that: "I think it's a decent source", and therefore reasonably believes is satisfied
LORD JUSTICE LEVESON
But you never get the ability to drill down into it.
A. Correct.
LORD JUSTICE LEVESON
Because once you ask the journalist to provide further and better particulars of his or her source, you'll be met with an Article 10 argument.
A. Well, you'll probably be met with the argument that this is within section 45 territory, namely relating to special purposes, and so the whole thing goes off for the special assessment procedure, which we've spoken to ten minutes ago, and by the time you get to the end of it, to use your words, the will to carry on is a little bit diminished.
LORD JUSTICE LEVESON
Yes. I think I didn't quite express it like that. All right.
MR JAY
The first criterion, that the processing is being undertaken with a view to the publication, that is an objective test, isn't it? It doesn't depend on the assessment of the data controller; it depends on the assessment of the Commissioner. Is that right?
A. It's well, if a claim is being made for a breach of the section 4(4) statutory duty, the way this would come forward, assuming one had cleared the Commissioner's involvement, would be that would be a matter for the court. The question is: is the processing undertaken with a view to the publication of any person of any journalistic et cetera material? So that issue, at the end of the day, would come before a court, as we've seen in the proceedings that have come before the courts themselves. There's a slight subjective element insofar as the view is the view of the journalist, so the journalist can say
LORD JUSTICE LEVESON
How do you get behind it? The journalist is a journalist, employed to publish material, and the journalist asserts, "Well, I was doing this in order to publish a story." Well, of course, one could imagine circumstances in which that couldn't possibly be so for example, if it touched the journalist's private life, and therefore it might have some oblique motive but in the general course of events, that's going to be unchallengeable, isn't it?
A. Yes, and that's why the Campbell decision, which said that "with a view to publication" didn't stop at the moment of publication but carried on beyond that, effectively made the thing run forever and give the press a complete protection under Section 32, not just up to the moment of publication but ever thereafter.
MR JAY
We'll look at that in a moment. You've told us earlier that Member States were given considerable latitude in relation to the directive, but at the very least had got to meet its basic standards but could do more. If one looks at the directive, Article 9 in this context. You set it out at paragraph 56 of your statement. Where do we get the "with a view to" restriction, looking at the language of Article 9? Because that refers to "only for processing of personal data carried out solely for journalistic purposes". So the concept there is "for journalistic purposes", not "with a view to the publication by a person of journalistic material".
A. Yes. I mean, one could argue the phrase "journalistic purposes" carries on to the publication itself. My point that I make in relation to Article 9 and its translation into Section 32 is that Article 9 recognises the contest between the right to privacy and freedom of expression, but Section 32 is all one way. It does not recognise any right to privacy. It's there, its sole objective is to cut away at the right of privacy, and at the end of it, certainly after the decisions of the court, there is nothing left of that right.
Q. The directive says "only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression". Now, the necessity test might suggest a wholly objective yardstick, yet the Act refers, as we've seen, to a part subjective/part objective test, namely "reasonably believes". So hasn't the United Kingdom done less than Article 9 requires?
A. That is my view and I would also go further in saying that the word "necessary" implies that something must be shown that this is needed in order for the reconciliation, and that is difficult to see in the Section 32 provision, which is supposed to give effect to Article 9.
LORD JUSTICE LEVESON
That's a debate that they had in the House of Lords, as you explain, with Lord Lester of Hearne Hill taking the point that you are making, and Lord Williams of Mostyn, Lord Wakeham and the then Solicitor General, Lord Falconer, endorsing the contrary view.
A. Yes, and the passages which I referred to in the end note from the Hansard, which were included as attachments, show that the concerns which were articulated by Lord Lester were very prescient indeed. He anticipated many of the difficulties which have been shown to have resulted from Section 32.
MR JAY
We don't know on this occasion whether Lord Wakeham was speaking for the press or speaking for the PCC or was speaking on his own behalf. We've seen his contributions in relation to section 12 of the Human Rights Act where he expressed himself as, I think, speaking for the press. May we move on to authority, paragraph 62 of your report. The main authority on this is the decision in the Court of Appeal, possibly the House of Lords. It depends on how you interpret the House of Lords decision
A. Agreed.
Q. whether it bears on this issue or whether they didn't decide it. It's the well-known case of Campbell v MGN. Could you remain us, please, of the essential facts of that case?
A. Campbell was the model who most people know. She was photographed leaving a her therapy for drug addiction and the photographs were published in the newspaper. She brought a claim against the newspaper for that. She brought the claim both as a breach of confidence and also under the Data Protection Act. Again, her claim was based on section 4(4) statutory duty which was owed to her, and in the High Court so in the first instance, so far as the Data Protection Act claim was concerned it was found that the published information, namely the nature and details of her therapy, had constituted sensitive personal data, and we'll remember that that includes medical matters. It was not lawful because it constituted a breach of confidence. It was not fair, as it had been obtained surreptitiously through a long-range lens. It didn't satisfy any of the conditions in schedule 2. It didn't satisfy any of the conditions in schedule 3. So just pausing there, it offended at every level the first data protection principle
LORD JUSTICE LEVESON
Was this Mr Justice Morland?
A. Yes, and the view taken by Mr Justice Morland was that the Section 32 exemption we'll remember we were looking at the phrase in paragraph A only applied to processing with a view to publication, so up to that moment, and not to the processing involved in the publication itself, and then he went forward and assessed the damages to her in the sum of ?2,500, with aggravated damages in the sum of ?1,000. So that's where she got on the first stage. In the Court of Appeal on the Data Protection Act claim, she was unsuccessful insofar as his ruling was overturned. The court accepted that processing including publications, so she was in that far, but it reversed Mr Justice Morland by extending the duration of Section 32 to cover processing on and after publication. So if publication constitutes processing, they said that the 32(1)(a) exemption applied to that as well, and as a result of that, the DPA claim failed. You mentioned about how the matter proceeded in the House of Lords. Essentially, what took place is that the appellant, now Ms Campbell, majored on her breach of confidence claim and very little, other than a few sentences, were said about the Data Protection Act itself, and all that we get is a short statement that that claim itself stands or falls with the breach of confidence claim. Now, since she stood with the breach of confidence claim, there is an argument that what's happened is that there has been a restoration of Mr Justice Morland's treatment of the DPA claim, but the fact remains that the greater treatment that is to be found reported is that of the Court of Appeal in Campbell v MGN.
LORD JUSTICE LEVESON
Which went the other way.
A. Correct.
MR JAY
But there was no consideration in the Lords of the temporal point, that whether the adjectival phrase "with a view to" ended at the instance just before publication or whether it continued to the moments of publication and beyond, so arguably the House of Lords have not impacted on the Court of Appeal's reasoning; is that right?
A. I would agree with that.
Q. The point which was exercising us me indeed when we were looking at Mr Thomas was not this subtle temporal point, "with a view to ending at the moment just before publication", but a rather different point on the Operation Motorman material, which, as you're probably aware for example, obtaining personal data with the intention of asking the target of a story for his or her version of events before the story is published, so to find out the person's contact details whether that is with a view to publication, which is a slightly different point from the one which exercised the courts in the Campbell v MGN case, and I think I, rightly or wrongly, expressed some scepticism that it could be with a view to publication because that was stretching the language of "with a view to publication" in the Act. I don't know whether you can assist us one way or another, whether my scepticism, in the light of the Campbell decision, was justified or not.
A. Well, in Campbell you've had the stretching of the end of the process. The part of the process you're now considering is at the beginning, and arguably if it's stretched at the end of the process, it should equally be stretched at the beginning of the process, and the reasoning behind the Court of Appeal's approach in Campbell v MGN would probably be supportive of that. It was obviously not directed to the beginning of the process, it was directed to the end of the process, but there was a genre receptiveness to the concerns of the press that they be given wide latitude in what they do because they move in a very fast operating environment and they can't be hamstrung by having DPA principles applying to them.
Q. I can see that, though. But it might be said if the press want to contact the subject of a story to find out his or her version of events, and that version of events is given, it may or may not find its way into the story which is eventually published. The journalist may say, "Well, that's very interesting, I'm going to ignore it", or he may say, "I'll take it into account", but "with a view to publication" does presuppose, doesn't it, that the version of events will be taken into account, not might be taken into account. So could it be said it's still too remote, even though it's anterior in time to the publication?
A. It certainly could be argued and I'd be prepared to argue it. The contrary would be that there's a difference between the phrase "with a view to" and "for the purpose of". "For the purpose of" has that definiteness that you are referring to. "With a view to" contemplates that it's possible but nevertheless you have a change of heart along the path to publication.
Q. Mm, I can see that. Yes.
LORD JUSTICE LEVESON
There's always room for argument.
A. In our trade.
MR JAY
Mm. I think the better view, contrary to the scepticism I expressed six or seven months ago, is the broad view which the press would wish to advance, the difference between "with a view to" and "for the purpose of". It does have to depend on the contact with the target actually yielding to you words in the publication itself.
A. The phrase "with a view to" is problematic for that very reason.
Q. Mm. Paragraph 68 of your statement, personal privacy protection after the case. You point out that people have lost the appetite, following Campbell, to pursue DPA claims. They now pursue Article 8 claims; is that it?
A. The appetite was limited to begin with. It's diminished to the point of nonexistence, almost, I would have said, post Campbell.
LORD JUSTICE LEVESON
It's never-ending litigation with no reward at the end.
A. Correct. Just the opposite, I would suggest, from what it should have been.
MR JAY
The explanation that you give it's end note Number 102, but the citation there beginning: "Data protection law is technical and unfamiliar to most judges." Judges preferring the fluidity and flexibility, I suppose, of the Human Rights Act, which most of them are more familiar with, than the arcane corners of the Data Protection Act, which, although very important, is not well understood by everyone; is that a reasonable summary?
A. My experience is that whenever the Data Protection Act is raised in court, it doesn't get a very favourable reception because it is daunting to most. The concepts are unfamiliar and the way in which the Act is worded and structured doesn't help to that level of understanding, so one immediately is confronted which difficulties, which it's very often impossible to overcome.
LORD JUSTICE LEVESON
I don't need to resolve what the law is, do I, and I don't need to go into
MR JAY
No.
LORD JUSTICE LEVESON
the rights or wrongs of the decisions either of Mr Justice Morland or the Court of Appeal, even if I was minded to do so. It just doesn't advance the process. We are where we are. The question is whether it's the best place to be.
MR JAY
You inform us, Mr Coppel, of forthcoming changes to the directive. The Commissioner has proposed a new regime for regulation and a new directive. What's the upshot of that, in a nutshell?
A. The regulation will be directly applicable in Member States, replacing the directive, and therefore the Data Protection Act 1998. However, the proposed regulation and that's all it is at the moment itself leaves it to individual Member States to provide for exemptions or derogations from the general principles which it articulates, and that in particular relates to the processing of personal data for journalistic purposes. So we get back to the very issue which was presented by the directive that led to the 1998 Act. It's for the Parliament of this country to come up with a formulation which respects the requirements, in this case of the regulation itself, but how it does that is a matter for Parliament itself.
LORD JUSTICE LEVESON
Would that mean that Parliament would have to revisit this topic in any event?
A. Correct.
LORD JUSTICE LEVESON
So it's worthwhile looking at this area, because if a regulation is coming up the lift, then Parliament might as well have the benefit, if benefit it is, of any consideration of the exemptions within the context of the terms of reference of the Inquiry?
A. I agree.
MR JAY
Can we look at your conclusions now, Mr Coppel? I think the first three are self-explanatory. The fourth is clear from what you've told us already, but the way the courts have interpreted the Section 32 exemption is that the measure of protection is less than that provided under Article 8 of the ECHR.
LORD JUSTICE LEVESON
Just for those who don't have the statement, you'll summarise these propositions in this way: "The DPA provides a code to protect the privacy of an individual's personal information, in whatever form recorded other than in an ad hoc manual record. The protection required by the directive and provided by the Act begins from the moment a person handling personal information acquires it and only ends once that person no longer holds it. The directive to which the DPA is intended to give effect permits Member States to relieve the press of obligations otherwise applicable to the processing of personal information where that is required to reconcile the convention right of privacy and with the convention right of freedom of expression. Freed from judicial authority, the Act provides an individual with a measure of protection against press invasions of personal information privacy, but, because the exemption does not provide for any balancing of the fundamental right to privacy against the fundamental right to freedom of expression, the measure of protection is less than that provided under the Article 8 provisions." Of course, "judge-made authority" properly so interpreted is judges trying to make sense of the provisions, not just making it up on the hoof.
A. We would hope so.
LORD JUSTICE LEVESON
Yes.
MR JAY
Your fifth point, Mr Coppel, is that you point out that in principle, at least, if you prune away, I suppose, at the judge-made authority, we have here a sophisticated and a predictable regime which in many ways is better than the uncertain regime afforded by Article 8 and privacy or breach of confidence claims; is that right?
A. That is right. The point I make has two sides to it. There's the side of the individual, who knows where he or she stands and has certain rights which are protected. But it also assists the bodies that are processing the data themselves to know what it is they can do with an individual's personal data and to do so in a fashion which is compliant with the law and compliant with the contest between Article 8 and Article 10 rights, rather than leaving it to the idiosyncratic world of an ECHR action.
Q. Can we look at the eighth point. The point about the way the judges have cut away the DPA to the point that it arguably doesn't give full effect to the directive that, I think, is clear from what you've told us already. The eighth point is on page 01195: "The practicality, ease and economy of remedying press mishandling of an individual's personal information would be enhanced by And then you come up with four proposals. Could you explain each of those to us, please?
A. The first is a redrafting of Section 32 to address what I consider to be the shortcomings in the provision as it is currently worded and also as magnified through judge-made authority. In so doing, what I've suggested is to actually articulate the contest between the Article 8 rights and the article 10 rights. Secondly and this picks up the point that I made about damage for the Commissioner to set a tariff of how much ought to be paid to an individual who brings a section 4(4) claim, and that should be referable to the duration, the extent, the gravity and the profitability of contravention a bit like one has, for example, in personal injury. There are tariffs set for losses of limbs and other disabilities which an individual sits(?), and in that way, again, it moves away from the idiosyncratic, it becomes more fixed, and enables the parties more easily to reach settlement. The third suggestion I made is that instead of going through the court system, there could be the opportunity for the Information Commissioner to administer these tariffs, freed of legal cost and all the rest of it, quicker, one would hope. Fourthly, I said removing all of the provisions in the enforcement sections relating to special information notices and so forth, and simply bring it into line with the enforcement regime which applies to everyone else, and of course prevent section 4(4) claims from being tied up with special information notices.
Q. I understand. Then subparagraph 9 sets out the advantages of bringing into being your recommendations. Could you tell us about those, please?
A. Well, my view is that were these amendments to be effected or amendments along these lines to be effected then what would happen is the DPA would be restored to its right position, namely as the primary mechanism of remedying press mishandling of personal information. It would provide proper and predictable recompense for mishandling of personal information. It would simplify the bringing of those complaints and cheapen them. It would unify the enforcement regimes so that there wasn't a special regime which applied to the press, and possibly, most significantly, would bring the DPA really into line with what the directive required of this country.
LORD JUSTICE LEVESON
To what extent does it protect the legitimate activities of the press acting in the public interest? In other words, investigative journalism and the like?
A. It wouldn't impair that at all, and there certainly wouldn't be anything behind my submission that that would be impaired. Indeed, freed of all of the other stuff, what would come out is that it is that which is being protected and having paramountcy over personal privacy in that sort of a contest.
MR JAY
Can we just understand how that would work in relation to your proposed amended Section 32(1)(a)? Your wording now is far closer to the language of Article 9 of the directive. Indeed, I think it precisely replicates it: the processing is necessary for the publication." Can we just look at a paradigm case of investigative journalism, that there's a lot of preparatory work efficiently before the publication. If the journalist can show that all the work is necessary for the publication, then he or she is protected both in relation to the preparatory work and to the publication itself.
A. Correct.
Q. Is that the correct analysis?
A. If recognises that particularly for investigative journalism, in which there may be a long trail leading up to the publication itself and some of those sub-trails may turn out to the be fruitless in themselves but are nevertheless necessary in order to explore all the avenues to produce the article itself. That will be captured by my proposed 32(1) paragraph (a).
Q. Thank you. In relation to (b), we still have reasonable belief, but this is in the context now because these are cumulative requirements, as we can see the "and" between (b) and (c): the reasonable belief that publication would be or is in the public interest." So that would reflect what may be, if the statutory instrument is brought in, the amendment to Section 55 through, I think, Section 78 of the criminal justice sorry, it's the 2008 Act.
A. The object of paragraph (b), as I've expressed it, is to bring in essentially the article 10 right of the press, the freedom of expression, recognising the public Watchdog function which they carry out, and yes, it keeps it as a reasonable belief because necessarily, to be effective, it seemed to me that that is what is required, rather than being able to show it objectively.
Q. How is (c) different from (b)?
A. (c) is concerned with Article 8, so it's looking at the individual. So (b) and (c) set up the contest which articles 10 and 8 respectively contain. It's concerned with the likely interference with the privacy of the data subject, and it looks to how that occurs from the publication of that journalism material. So it's not concerned in a sense with the journalist, as it were, beavering away to make the story; it's concerned with the invasion which happens upon the publication of that journalistic material.
LORD JUSTICE LEVESON
So to provide some colour to that provision, what you're saying is you're recognising that in order to get to what is or may be a legitimate story, there may be all sorts of processing of data necessary, but at the end of the day one also has to look at what was actually published, because it may not be justifiable to publish some of the data which you've had to process to get to the end story, because that data the publication of that data may not be in the public interest.
A. Correct. That's exactly what I've sought I've striven, with the suggested wording of (a), (b) and (c), is to recognise that the process of getting to the end of an investigative journalistic story may involve picking up material which ought not form part of the publication itself. What one looks to is: what comes out of the investigative story at the end and does it justify what has been done along the way?
MR JAY
Because we don't get to (c) if there isn't a publication; that's right, isn't it?
A. Correct.
Q. (b) is looking at all stages up to and including publication?
A. Correct.
Q. So (b) is the privacy issue is not relevant because one's just considering the wider question of public interest. Privacy only comes in if there's publication because then the whole world can see the article published and you logically must weigh up privacy rights against freedom of expression.
A. Although, that said, paragraph (c) will still operate if, for example, a journalist embarks upon an investigation which is thought to be of massive importance but, a little way down the track, realises that all of these threads aren't going to justify the publication of anything, nevertheless, the fact that he has in mind, reasonably, a story at the end of it which of is important public interest will justify what has been done, provided that the journalist stops at the point when the threads make it obvious that there is no story along the lines anticipated
LORD JUSTICE LEVESON
If you've picked up a different story, which has no public interest and you publish that, then you wouldn't be able to satisfy the requirements of the provision?
A. Correct.
MR JAY
Yes, so it's an elegant solution, which whether or not it goes slightly further than Article 9, the United Kingdom would be entitled to do that because the directive sets out a minimum standard not a maximum standard. Some would say this meets precisely what Article 9 is contemplating.
A. Yes. I mean, my object wasn't to go further than is required of the directive but really to express what the directive requires.
Q. The only other point the rest of this is drafting which meets the principles you've articulated before when we come to compensation, you're contemplating the Commissioner sets tariffs. These are, as it were, akin to general damages for distress and it might include pecuniary damage as well but that would be special damage and separate. Are you contemplating reasonably modest levels of compensation but slightly higher than those that we've seen to date? What's the sort of policy?
A. It will depend entirely on the extent of the breach of the principles themselves. What I had in mind one can anticipate, for example, that if something has a very wide dissemination of very sensitive personal information let's say a person's medical reports were disseminated in a national newspaper. I find it difficult to see why that should be only modestly compensated. That, it seems to me, is a fundamental breach of what the Act is there to protect. In particular, sensitive personal data has been disseminated abroad, and the fact that the individual doesn't break out into boils or doesn't show some other physical manifestation of in a sense, the nakedness of that individual's personal medical details being put in a public forum is, so far as I'm concerned, neither here nor there. What we are concerned with is the deviation from the principles which the Act and the directive require.
LORD JUSTICE LEVESON
There is a problem here, which we would have to find a way of resolving, and that is the way in which we commensurate that which is incommensurable. Let me give you the example from personal injuries, although there are others in the law as well. In personal injury litigation, the figures awarded for pain, suffering, loss of ability(?) are conventional, in the sense that there isn't a logical analogy between the loss of an eye or the loss of a leg and a sum of money. There has to be an assessment made which, of course, in Hyall v Rank(?) and other cases was increased to provide some measure of compensation, but there is no logical basis for saying, "Well, it's X thousand pounds as opposed to Y thousand pounds." What the judiciary then do is they can create a shopping list, if you like, of values for different claims, comparing and contrasting the pain, suffering and loss involved. So on the one end, a tetraplegic, on the other, a comparatively modest injury, which might itself range from whiplash through to a broken arm or a broken leg, and putting everything in between. There are, as you know, four volumes of a book that reduce the decisions of the court into researchable format.
A. Mm-hm.
LORD JUSTICE LEVESON
And the judicial studies or the judicial college have produced booklets on it. Exactly the same problem for sentencing I won't develop that analogy but therefore the problem is going to be trying to find an appropriate touchstone against which to make this assessment.
A. I agree. What I've suggested is the things that, let us say the Information Commissioner, he being charged with coming up with this assessment, should look to are the extent of deviation from the data protection principles, the period of time over which there has been that deviation, the manner of deviation has it had wider publicity than others, for example and also the profitability to the breaching data controller. One of the differences between this sort of tariff and the one for personal injury is that in this situation there's a greater degree of deliberateness than there will normally be in personal injury. Personal injury will normally result from an act of negligence by the defendant. Here there's a greater degree of deliberateness by the defendant to any such claim, so that needs to be reflected, I think, in the tariff. I've called it a tariff of solace. It's intended to give solace to the wronged individual through the invasion of their personal privacy.
LORD JUSTICE LEVESON
Rather than being intended to be punitive?
A. No, not intended to be punitive, although I suspect individuals get solace from the fact that the wrongdoer has been punished.
LORD JUSTICE LEVESON
I understand that. You're suggesting this tariff or regime should be prescribed by the Commissioner. What would the role of the Tribunal be, if any?
A. What the court would do is look at the tariff which has been set by the Commissioner, see where the events that are described and shown to have occurred fall within that tariff, and make an award accordingly.
LORD JUSTICE LEVESON
So that would be a judicial assessment?
A. If one went down the judicial route. I've also made the suggestion that a disgruntled individual should have the option of simply going to the Information Commissioner and saying, "Here's what's happened, I want an award, you give me an award", in a process which doesn't involve going to court. Obviously, the Commissioner would take the views from the would-be defendant themselves let's say, in this case, the press and make an award accordingly, and that would be a simpler, more straightforward method of proceeding which won't result in the publicity of a judgment itself.
LORD JUSTICE LEVESON
But would have to be appealable or challengable in some way.
A. Correct.
MR JAY
Thank you, Mr Coppel. Those were all the questions I had on your evidence.
LORD JUSTICE LEVESON
Mr Coppel, I'm very grateful to you for the thought you've put into this. Is there any other aspect of this area of the law which you yourself have described might be thought of by some as somewhat arcane that you'd like to draw to my attention?
A. No. I think if one works one's way through the document which I've provided, the written document, and particularly all of the links and the end notes, that's more than ample for the purposes of this Inquiry and indeed what I would wish to say in relation to it all.
LORD JUSTICE LEVESON
Thank you very much at all.
A. Not at all. I'm grateful.
LORD JUSTICE LEVESON
Thank you.
MR JAY
Our break?
LORD JUSTICE LEVESON
Yes, that's a good idea. (11.23 am) (A short break) (11.30 am)
MR JAY
The next witnesses are being taken together. Mr Macintosh and Dr Unger, please. MR STUART MACINTOSH (sworn) DR STEVEN WILLIAM UNGER (sworn) Questions by MR JAY
MR JAY
May I ask each you your full names, please?
MR MACINTOSH
Stuart Macintosh.
DR UNGER
Steven William Unger.
Q. Thank you very much. You are speaking jointly to a paper which Ofcom produced in answer to questions posed to Ofcom by the Secretary of State published on 19 June 2012, starting at our page 00526. Do you attest to the truth of the facts and opinions set out in?
MR MACINTOSH
Yes.
DR UNGER
Yes.
LORD JUSTICE LEVESON
Thank you very much indeed for this very thorough piece of work. As you can appreciate and doubtless it was also in the mind of the Secretary of State when he asked you to do it aspects of it touched very much on the terms of reference which I have to address. So I'm grateful to you both.
MR JAY
Mr Macintosh, first of all, you are an executive member of Ofcom's board?
MR MACINTOSH
That's correct, yes.
Q. And Dr Unger, you are group director responsible for Ofcom's strategic approach to communications regulation, which includes leading the executive work on media plurality; is that correct?
DR UNGER
That's correct, yes.
Q. So although this report may include the work of others, you have each contributed to it; is that correct?
MR MACINTOSH
Yes, yes.
Q. Thank you. Now, as I indicated first of all, the Secretary of State in October last year asked you to address five questions relating to media plurality, and that is what you've done. In the executive summary, you supply us with the answers, but I think it's going to be more helpful to us if we move to the introduction, which is section 2, 00532, because some of the concepts will be unfamiliar to many of us. The five questions the Secretary of State asked are paragraph 2.1 at 00532. These presumably were very reasonable and appropriate questions; is that fair?
MR MACINTOSH
Yes. There are roads from earlier consideration of the public interest test, which was a question that the Secretary of State had put to us at the time of News Corp's proposed acquisition of Sky.
Q. So it really flowed from your report, which you call the public interest report. That was, as you say, prepared in the context of the Secretary of State's intervention notice following News Corp's bid for the remaining publicly owned shares in BSkyB. The report, I think the BIT report was published in June of last year; is that correct?
MR MACINTOSH
The public interest test report was published in December of 2010.
MR JAY
Pardon me.
DR UNGER
We provided it to the Secretary of State on 31 December. I can't I think it may be that the publication was at the point where he made his final decision, which would have been somewhat later.
Q. There were two stages. The first stage was whether there was an issue worthy of consideration by the Competition Commission at the end of December 2010. You decided that there was. The second report of June 2011 was your assessment of the adequacy of the undertakings in lieu and you, having considered them, were of the conclusion that they did meet the plurality concerns which you'd earlier identified; is that a reasonable summary?
MR MACINTOSH
Yes.
DR UNGER
That's right. There was also an intervening report on an early set of undertakings which didn't meet our concerns.
Q. Thank you. Can I ask you, please, to explain your methodology, section 2.7, page 00533. The four basic concepts there starting with goals and scope of plurality.
DR UNGER
In very general terms, we felt it was important that before we answered the specific questions we understood what was the underlying purpose of any plural regime. That was what the discussion about goals and scope was about. What we were trying to achieve was the scope of the regulation that might achieve that.
Q. Market context?
DR UNGER
That was understanding, both on the supply side and the demand side, what was the structure of the market. So there we commissioned consumer research to understand consumers' preference for different types of news and we commissioned a study into ways which news was supplied.
Q. "International case studies" that's probably self-explanatory, as indeed "review of academic thinking". You make it clear that during this process of considering your answers to the Secretary of State's questions, you put the matter out to consultation, as it were. You issued an invitation to comment, presumably on the basis of that being standard practice in this sort of domain. You've explained that you received a significant number of responses from the sort of entities whom you might expect to respond, including all the non-confidential ones were put on your websites. Can I ask you, please, for your approach, paragraph 2.12, and the four principles which you set out there. The principles obviously made good common sense but did you apply them simply because they were good common sense or did you get them from somewhere else?
DR UNGER
They partially come from our own duties, particularly around proportionality. So I think it was also in recognition that in reaching our set of conclusion we were often trading off different factors against each other and that there needed to be some set of guiding principles in making those trades.
Q. Thank you. Section 3, "Why media plurality matters". The public policy goals, 3.2: not a goal in itself but a means to an end." Can I invite you, please, to develop that point?
MR MACINTOSH
Well, based on the research which we did in the context of this and our own related work, it does seem to be fairly clear that in order for there to be an informed democratic process and debate, it's very important that the public and participants more generally have access to news and information on current topics and events. There is, in a sense, no single truth in relation to events and circumstances and it's thus therefore important that there is some diversity in the sources of news and information and opinion that are available to the public if they're going to be able to interpret and understand what is going on and contribute to that democratic debate. So I think the reason why plurality matters is largely grounded in that. There is a related question as to ensuring that no one voice in particular dominates the information going to the public, which is a secondary concern.
LORD JUSTICE LEVESON
Is it one voice or is it a restricted number of voices?
MR MACINTOSH
It's probably more a restricted number than one single voice. I mean, ideally one would like to see a diversity and arguably the more, the better. As we discuss in the report later on, however, in different media and different platforms, there may be economic constraints on the extent to which it may be possible to sustain a large number of different voices. But all other things equal, the more voices, the better.
LORD JUSTICE LEVESON
When you're considering these issues, were you simply doing so from the perspective of diverse opinion being available to the public or were you also taking into account the power that might accrue to one or more voices, even if there are a large number, if they are, as it were, Gullivers as opposed to Lilluputians in the market?
MR MACINTOSH
Yes. We were very conscious of both considerations and in point 3.5 of the introduction, I think we make reference to the fact our concerns were about informed citizens, which is making sure that there is supply and that the supply is diverse, and making sure that no one owner or collection of owners is able to have an undue influence.
MR JAY
We know as a matter of policy, because Parliament has so said, that there's a difference between the idea of competition and the idea of plurality, but can you encapsulate that difference for us, please?
A. Competition is essentially to do with ensuring that there's no one party in a position where they have economic power, and the way that that is traditionally approached in the competitions sphere is that entity having the ability to act independently of their customers and their competitors. A simple translation of that is that they can raise the price and increase their profitability without fear of losing customers.
LORD JUSTICE LEVESON
Or reduce the price to drive competition away.
MR MACINTOSH
Or reduce the price to drive competition away. It can work on both sides of the market. Plurality is a different concern because it's not so much acting independently of customers in that sense. If an individual party has a very powerful and loud voice, the economic disciplines which might act in a competitive market do not necessarily come into play in a media plurality consideration.
LORD JUSTICE LEVESON
So just to provide a bit of texture to it, you'd be concerned with competition in supermarkets, but one tin of baked beans sold by one supermarket is very much like the same tin of baked beans sold by a different supermarket, so it's a competition issue?
MR MACINTOSH
Yes.
LORD JUSTICE LEVESON
But for the media it would absolutely focus on plurality?
MR MACINTOSH
Yes, I think that's correct. That's not to say there aren't competition issues
LORD JUSTICE LEVESON
No, I agree, and as I used the word "absolutely" I thought: no, that goes too far.
MR MACINTOSH
Yes.
MR JAY
Yes. Well, the competition issue in the BSkyB bid was dealt with very quickly by Brussels?
MR MACINTOSH
That's correct.
Q. The difference, please, between external plurality well, I think that's a concept we can understand, but internal plurality, that may be a slightly more difficult one. Could you help us with that idea?
MR MACINTOSH
Internal plurality is the notion that you may have a particular news medium which chooses to provide opportunities for a variety of different parties to portray their perspective on current events through that one channel. There may, on the other hand, be news media who want to provide a more unified theme and perspective to their readership and so are less inclined to do that. So in the former case, there's more variety of views and diversity even though it's being channelled through one particular medium.
Q. I've been asked to raise this question with you: to what extent is it possible for an organisation genuinely to deliver internal plurality? In other words, do you think that internal plurality can exist effectively within one channel of communication?
MR MACINTOSH
I think a view that it can exist to some extent and the extent to which that is significant in the market is something that we would seek to take account of. I think in our consideration, we felt it was important to recognise that there is a distinction between the two that it would be inappropriate to assume that internal plurality did not exist and did not need to be taken into account of in any consideration of the state of plurality in the market.
DR UNGER
I would add that I think it's fair to say that internal plurality is a more difficult concept. The undertakings that we discussed with News Corporation around Sky News were, in many ways, trying to ensure internal plurality by maintaining some degree of editorial independence for Sky News, and you inevitably end up constructing a set of behavioural rules which require an associated set of arrangements for monitoring and enforcing. So it is more complex.
Q. Within the scope of media plurality, the first sub-issue is genre and the point here is: do you focus on news and current affairs primarily or do you bring into consideration everything else within the scope of media such as drama, comedy, other factual formats, since those are capable, although perhaps to a lesser extent, of shaping people's opinions? You've come to the conclusion, as we see, that you should focus on news and current affairs primarily, but other witnesses are going to tell us that one should broaden the scope of the inquiry. Could you assist us here as to why the narrow approach is the one that found favour with you?
MR MACINTOSH
The broader interpretation does have some validity. I don't think that we would challenge that for one moment, and indeed I think that as is reflected in the report, to the extent that these issues are looked at in some other countries, in some of them, they do take this broader perspective to look out to broader cultural issues and the impact of different genres. So I think that we recognise that one can make a legitimate argument. In this context, we focused on news and on current affairs partly because the evidence that's available to us does suggest that news and current affairs are particularly important to consumers in the UK. They consume news and current affairs very significantly. They tell us that that genre is very important to them. We were also very mindful of the fact that we were looking to come up with practical solutions, and thus it was appropriate not to extend the net too wide, otherwise it's very, very difficult to do that. The third thing is in the context of the UK, it's important to take account of other regulation and obligations which is designed to achieve some of these broader objectives relating to other genre which relate specifically to the obligations on some of the PSB operators, for example, which, again, we've set out in the report. So we could see the arguments but we felt there were good reasons for focusing specifically on news and current affairs.
Q. Thank you. The concept of geographic scope I'm sure we can grapple with ourselves, but the value chain for the supply of news, you say that that is complex. Is the difference here, I think, between the retail and the wholesale?
MR MACINTOSH
Yes.
Q. If we want a definition of that, we get it from footnote 16, which clearly explains that.
DR UNGER
I think it's maybe worth adding on that point that we also recognise that could become more complex going forward, with the role of new types of aggregators online, for example.
Q. Your recommendation this is point 3.21: "Flexibility is required to consider at which points in the value chain editorial control is most likely to be exercised and therefore how best to measure diversity and influence." Do you have a view as to whether one should be focusing more on wholesale rather than retail or vice versa or is each equally valid as a metric?
DR UNGER
In the public interest test and I think also here, we looked at both sets of metrics and we essentially assessed them in the round. There are different reasons for focusing on wholesale and retail. I don't think at the moment it's possible to say that one should particularly look at one of those.
Q. Then the concluding part of this section, what would a plural outcome look like when you characterise the ideal plural outcome well, there are six bullet points and I think they're each self-explanatory. So we attain that state of affairs and they would each be subjected to diversity in the fuller sense of the term and that's the gold standard. The market and regulatory context now, which is section 4. We're looking at a range of suppliers: television, radio, newspapers, online. You see them as complementary, not as direct substitutes, I suppose for the obvious reason that many people dip into at least one and don't regard them as substitutes for one or each other; is that right?
DR UNGER
Yes. I think it's also partially that we weren't only talking about substitutes in economic terms; we were also trying to describe the different characteristic of the different types of platforms and the way in which they were consumed, which is quite different.
Q. You've provided us, in your second annex, with a table of the major news media providers in the UK. Of course, that spreads into the broadcast news. It's not very clear to read in the copy I have here but it helpfully sets out the areas. Is there anything you wish to add to 4.4, which explains the clear differences between television on the one hand, for example, and newspapers on the other, and the growth of the Internet?
DR UNGER
I don't think so. It summarises more detail that's in the annexes but that summary is reasonably complete.
Q. 4.5, this is your quantitative consumer research: "TV remains the most used and important platform." The reasons for that, I think, are clear enough. "Online news is significantly growing." Well, we understand that likewise. But multi-sourcing, could you help us through that bullet point?
DR UNGER
So this, I think, goes back to the earlier discussion about the underlying goals. I think earlier on we established that what was important was both a share of voice, that no one voice should be too powerful, but also the idea there should be a diversity of voices in the market. Multi-sourcing is one particular measure, which really is complementary to looking at market share, which allows one to assess what range of views individual citizens might be consuming. So if individual citizens consuming a wide range of different sources of news, then I think one would be more comfortable about the extent of plurality in the market.
Q. You looked at other evidence in 476, which I think is likely to be more qualitative, is that right, than quantitative?
DR UNGER
It's partially quantitative. We've looked at our own measures but we also here summarise some of the results from some the industry measurement systems, such as Barb, RAJAR and so on.
LORD JUSTICE LEVESON
Such as pardon?
DR UNGER
Sorry, there are several industry measurement systems. Barb is the systems used in TV. RAJAR is the measurement used in radio. Within newspapers, there are the ABC and NRS systems, and then online, there is the UCOM just Nielsen system. So what we are also summarising here are some of the results from those platform-specific industry measurement systems.
MR JAY
The significance of newspapers you explain in the bullet points. Although, of course, there has been a decline in readership, the impact and influence of the printed word, coupled with the headline, coupled very often with a photograph still remains important, particularly in the context of a news medium which doesn't have to be impartial. A partial one is going to influence people in various obvious ways. Can I ask you, please, about the regulatory context and your duties. The last bullet point of 4.9: "Positive mechanisms to promote media plurality". Can you help us about those, in particular the what you set out in annex 3 and the implicit subsidies?
DR UNGER
So particularly in relation to the public service broadcasters. The public service broadcasters receive certain benefits, mainly in kind, in terms of access to spectrum and the prominence of, for example, electronic programming guides. In return for those benefits, they face obligations. For example, they face quotas they have to provide in relation to national and regional news. So that positive set of commitments which promotes the provision of news in circumstances where it would otherwise not take place is like a positive lever for delivering plurality.
Q. Thank you. There's some further explanation between paragraphs 4.20 and 4.23, which we're going to come to. We're still on the regulatory regime. Media mergers. We looked at this with, I think, both secretaries of state that's Dr Cable and Mr Hunt. The relevant provisions are in the Enterprise Act of 2002, which carry forward into the Communications Act. We've examined the difference between section 58(2)B and section 58 (2)C(a). If I remember rightly, the first of those provisions was relevant to the intervention notice of 4 November 2010, but when you came into the saddle a bit later on considering the UILs, I think you were considering section 58(2)C(a); is that right?
DR UNGER
I can't remember which is which. I do know that there is one set of considerations which deal specifically with newspapers and there's another set of considerations which is really around cross-media mergers and we were focused on the cross-media aspects of these mergers.
Q. Thank you.
DR UNGER
I think in both cases, Sky, ITV and News Corp Sky is essentially treated as a cross-media merger.
Q. Thank you. Controls on media ownership at the bottom of this page, 4.16: "The main remaining ex-ante statutory restrictions on media ownership are The 20/20 rule. Now, that came into the Communications Act of 2003. I can't remember whether it existed in some different
DR UNGER
In previous Acts, yes.
Q. Maybe it was in the 1996 Act.
MR MACINTOSH
I believe that's correct.
Q. Yes, Sir John Major explained that to us, didn't he? That rule prohibits a newspaper group with more than 20 per cent of national newspaper share from holding a Channel 3 licence or stake in a Channel 3 licensee that is greater than 20 per cent. Then there are other ex-ante rules which are also to be found in the 2003 Act. The position in relation to broadcasters as we know, there's an obligation to be impartial and that naturally has a knock-on effect to the issue of plurality; is that correct?
MR MACINTOSH
That's correct.
Q. The reason for that is probably obvious but can I ask you to make that explicit?
MR MACINTOSH
It's helpful insofar as it creates an expectation that there will be some measure of balance in the news selection and the way that news stories are presented. However, a couple of qualifications in relation to that. The legislation calls for due impartiality, so it's not an absolute concept, and that inevitably means that the broadcasters in question exercise some measure of judgment in that context as to whether or not they're bringing all of the different perspectives to an issue that they might. The second consideration is that when it comes to the selection of topics to be covered, impartiality does not ensure that there is a diversity with regard to that, so while impartiality is helpful as a concept and provides some reassurance to listeners to TV, radio and news, it doesn't necessarily go all the way and provide a measure of plurality.
Q. I've been asked to put this point to you. You say in paragraph 4.18 you've just told us that impartiality cannot be measured precisely and that the rules would not necessarily prevent an individual with control of a media organisation from influencing the news agenda through the selection or omission of stories. But does this mean that you consider an impartiality requirement as not capable of being enforced if a media enterprise aims to thwart it?
DR UNGER
I think the issue is more that it is not a complete set of obligations, that one can be impartial in relation to the stories that you run with, but it's still possible to determine an agenda through the selection of stories. I think that's quite well acknowledged. I think the Competition Commission acknowledged it in the context of Sky ITV. I think James Murdoch acknowledged it in his 2009 MacTaggart lecture. So I think it's well acknowledged that the selection of stories is somewhat different from the question of whether you're impartial when you cover those stories.
Q. Positive obligations on public service broadcasters. I think we can just note those because they are not likely to be central to this Inquiry's consideration of the issues. It's page 17, 00545. If I can move on to section 5, your advice on media plurality. First of all, measuring media plurality across platforms. The Secretary of State had asked you to recommend the best approach. Across platforms well, television, radio, press and online. I think those are self-explanatory. But can you help us, please, with the various measures or metrics, to use the term deployed in this area? Availability, consumption and impact. Can you talk us through those, please?
DR UNGER
So availability is a measure which there's been quite a lot of focus on in the past. The view we took here is that availability provides some sense of shelf space. So there's, I think, an analogy with a library, where the sum of the books available in the library, that's the sum of content that's available to citizens. That, however, only tells you a certain amount of influence. It's only when you actually consume a book by reading it that that can start influencing opinion, and that's therefore why we've moved fairly quickly from availability metrics to consumption metrics. Ideally, you would like to move further and start assessing impact, which is really the third set of metrics in ideal world. I think the problem there is that there are not very many quantitative metrics to allow you to assess impact. That's why we end up focusing on consumption metrics as something that is better than simply assessing the availability but also a set of metrics where it's practical to gain quantitative data.
Q. So you're looking for metrics then which are quantitative, which, because they're quantitative, they're more likely to be objective, but also are not too complicated because if they're too complicated, well, the dangers of that are obvious, and if they're too judgmental, then there might be too much argument about what the right outcome is. Is that a reasonable assessment of where we are?
DR UNGER
That is a reasonable assessment. I think it's worth highlighting though that I don't think we can shy away from the need to make judgments here. So we have noted in this section that there's a set of metrics that are useful but they have to be looked at alongside a number of contextual factors, many of which are qualitative.
LORD JUSTICE LEVESON
Throughout all this work, there are a number of judgments that have to be made, which may not be absolutely crystal clear on the face of the page but inevitably flow from the nature of the exercise that you're undertaking.
DR UNGER
That's correct and I think all one can do is try and gather what evidence there is. So if I for example, if I take this point about impact. We did carry out consumer research, which looked at the personal importance that individual citizens attach to different titles, different types of media, and that gives you some sense of influence, but you then do have to apply judgment in how you apply that.
LORD JUSTICE LEVESON
And that judgment isn't necessarily unaffected by policy considerations.
DR UNGER
I think that is why it is important to have a very clear articulation of the underlying principles of what you're trying to achieve. It goes back to that early discussion about: what are the underlying objectives? I think there was a witness yesterday who talked about the animating principles of a framework. We have to be very clear what are the underlying duties, what are the underlying things we're trying to achieve and we apply judgment in that context.
LORD JUSTICE LEVESON
Yes.
MR MACINTOSH
I think it's also quite interesting if you go back to when this was framed or looked at again in the context of the Act in 2002 and 2003, there were changes in economic regulation where, in a sense, those are now being confined to the domain of regulators and the CC, and there you can have a bit more confidence about the relationships between these parameters. So we can look at market power and we can test them using tools which economists have developed and so forth to help us do a our work and reach conclusions. It's much more challenging looking at that in the context of information or consumption and understanding that in the context of the impact on public opinions and views, and it would appear to be the case that those were among the reasons why Parliament decided that some aspects of this should be reserved for the political process as opposed to being done from a technical perspective.
LORD JUSTICE LEVESON
You're two steps ahead of me, because of course, at the end of the discussion has to be addressing the issue that was raised by a number of
MR MACINTOSH
Yes.
LORD JUSTICE LEVESON
witnesses as to who should be making this decision. That's precisely why I asked you about this isn't a machine that you can press buttons in and get out an answer.
MR MACINTOSH
Correct.
LORD JUSTICE LEVESON
There is an enormous amount of scope for potential scope for subjectivity, which is fine, it's understandable, but we just have to be aware of it.
MR MACINTOSH
Yes.
LORD JUSTICE LEVESON
So I'm pleased you're prepared to deal with the ultimate question at the end. Yes.
MR JAY
On this issue more generally, we've had some evidence that one of the concerns around the impact of the media on freedom of expression is the risk of those who control the media effectively drowning out other voices. Is this an issue that you've considered at all in your work on plurality, particularly when we're looking at the measures?
DR UNGER
This goes back to the twin set of measures, part of which are around no individual part of it's around diversity. We identify consumption metrics, particularly reach and multi-sourcing, which are around diversity, but we also say that share is important. If there's too high a share, then that creates a risk that a particular voice might drown out others.
Q. Thank you. You don't, as it were, stop with your quantitative measures. You also consider contextual factors which, I suppose, are likely to be softer, more qualitative, but could you just summarise what those are and how you take those into account?
DR UNGER
Some of them relate to regulations. So in particular, we've noted that the existence of impartiality regulation in TV broadcasting has to be relevant when considering plurality. Some other contextual factors might relate to the way in which particular titles or particular platforms behave absent regulation. So the particular positions that proprietors take, whether they take a very active role in influencing the views expressed in their titles or whether there's a greater degree of editorial freedom, editorial independence. Those are all factors that might be relevant and you would have to look at the specific circumstances.
Q. Thank you. So you bring all these points together in paragraph 5.31. We can see figure 3, which is a useful table, which includes the quantitative and the contextual measures. It's also part of your advice to the Secretary of State at the bottom of this page, 5.33, that the metrics framework itself should be assessed during each main plurality review: "This will ensure that it continues to capture what we cannot predict or measure today." Because obviously this framework is only going for work for today and the immediately foreseeable future. It may in due course, or fairly soon indeed, become redundant. On the next page, our page 55002, online and the measurement framework. Can you help us, in particular paragraph 5.36, with the different types of service which are available to the Internet?
MR MACINTOSH
There are a number of different services and they continue to evolve.
LORD JUSTICE LEVESON
Could I ask you if you could speak up a bit? It doesn't actually magnify the voice, this thing. It records it but it doesn't amplify.
MR MACINTOSH
Okay. I have the softer Scottish accent, not the harsh Glasgow accent. I shouldn't say "harsh"; my fellow Scots will not thank me for that. Several developments. Existing media companies have obviously realised that the Internet is a potential very important means of distributing their content and consumers are going increasingly to the Internet. So we've had a lot of traditional media companies, newspapers and others establishing a very, very strong presence on the web. So people who have previously relied solely on the physical newspaper either rely on that and online, and some are actually just going completely online. Secondly, you have aggregators, organisations like Google, who provide a way for users of their services to get to a whole variety of different news sources. I don't believe that Google employs any journalists, but they're becoming a very, very important channel, a conduit through which users get access to news. You then have blogs, which are run by individuals, on which they post views and post information regarding current events, and then you have new entities who are establishing up effectively as provider of news services online, of which there are quite a number. So there's quite a proliferation and it's a market which is changing and developing very, very rapidly, and one which increasingly is being used by citizens and consumers to gain access to news content.
MR JAY
Thank you. 5.39: "The move to online distribution has created a rich diversity of online news supply." I think each of these categories is self-explanatory really: "Different online formats allow a range of consumption patterns low barriers to entry have facilitated a growing diversity of viewpoints online news and social media enable high levels of participation, including unmediated comments." The rapid innovation point. In terms of where we are today, the importance of the Internet vis-a-vis other more traditional suppliers of news, how would you describe that?
MR MACINTOSH
It is becoming very important. I think in one of the charts which we showed earlier, something like over 40 per cent I think the number is currently around 41 per cent of users use the Internet to get access to news services in one form or another. That appears to have doubled over a relatively short period, i.e. over the past three or four years. So it is very, very important and it's growing very rapidly and may continue to grow rapidly because of the evolution in the devices and the way that people get access to the Internet.
LORD JUSTICE LEVESON
That would also include using traditional news online, newspapers online?
MR MACINTOSH
That's completely correct. One of the interesting facets of the way the online environment has evolved is that some of the major very, very well established players like the BBC are actually the most popular online sites today.
DR UNGER
There was an interesting contrast, I think, though, in its conclusions. An important conclusion there was that most of what we see online is essentially offline players now going online. So existing newspaper titles, for example, opening up online sites. One of the interesting conclusions here was I think the increasing importance if you look at the online rankings, Facebook and Google appearing joint second and third, if you like, in the rankings online, companies that didn't exist a few years ago.
MR JAY
The risks of the development of the online platform. We can see those in 5.44, page 00553. Again, most of these are fairly clear. Disruption to traditional news markets, the potential of navigation tools to reduce plurality of consumption. Could you explain that one for us?
MR MACINTOSH
When consumers are accessing news through aggregation sites and so forth, the search algorithms which guide them towards particular websites will have an influence on what they see and consume. At present, that doesn't appear to be an issue or concern, although one could imagine circumstances in the future where there's a more active role played by the aggregators to steer people towards particular sites for particular reasons.
LORD JUSTICE LEVESON
Or for commercial reasons.
MR MACINTOSH
Yes. Very largely for commercial reasons.
DR UNGER
I think we were also that comes particularly in the fourth bullet point. I think at this point we were also concerned about the potential risk that people would seek out content which reinforce their own views or the views of their friends, if you like. So as opposed to a medium where you are presented with content which has been collected by somebody else, if you're in a situation where you're selecting the content that you access, you may seek content that reinforces your own views.
LORD JUSTICE LEVESON
That might be so if you by a newspaper, because those who have certain political views will choose one newspaper; those who have different political views are unlikely to choose the first but will choose the second. I won't put names or labels to any of that.
MR MACINTOSH
Absolutely.
DR UNGER
It's clear that it's already a potential issue with newspapers. I think the point we're making is simply where you're able to search for individual stories, that risk may be increased. We did not put a great deal of weight on that point, but I think that is the point.
LORD JUSTICE LEVESON
Yes.
MR JAY
Your conclusion or your recommendation is that online be included in any market assessment. Are you saying though, in paragraph 5.50, that there would need to be a change of the law in order to achieve this recommendation?
MR MACINTOSH
Potentially so. I mean, "media enterprise" as currently defined in the law would not encompass online. Therefore if one was going to do a review and be able to include effectively online, it seems likely that there need to be a change, yes.
DR UNGER
It may not be necessarily the case that requires primary legislation, so we note there are different options in the footnote.
Q. What would need to be done to the public interest considerations though, which are set out indeed, I know in the Enterprise Act? Are you suggesting amendments to those to deal with the online considerations?
MR MACINTOSH
I think insofar as those constrained our ability to encompass online in a review, we were really party to do it, yes, would be the answer.
Q. Can you tell us, please, which types of online service you think should be included? In other words, news sites, aggregators, blogs, all or some of them?
MR MACINTOSH
I think it goes back to what we said earlier about this being a dynamic market where one needs to be open to the circumstances as you find them. If you find that there are different sorts of sites through which people are gaining access to news, information, opinion and comment that counts towards plurality, ideally you would want to have the flexibility to include those in your assessment.
Q. How would you measure the impact of these services take aggregators or blogs on plurality?
DR UNGER
So we've identified a measurement system that's available at the moment, this UCOM/Nielsen system. At the moment, that allows you to gain certain consumption metrics, so for example, what's referred to as dwell time, so the amount of time that individuals spend looking at particular pages. It allows you to measure click throughs, essentially, something that's important from the perspective of advertisers. So there is quantitative data available through those measurement systems and that's what we have used at the moment in assessing plurality. But I think we've been very conscious that particularly in relation to online, that is likely to evolve over time, not least because the nature of the concern might change and therefore that is exactly where there needs to be flexibility.
LORD JUSTICE LEVESON
But do you have to be careful that you're not comparing apples and pears? You can see how long a person looks at a page on a website. What you can never determine maybe you can, I don't know you're way ahead of me.
DR UNGER
No, sorry, it is exactly the problem we talked about previously, which is that a consumption metric is helpful, it tells you what people are looking at, but it doesn't tell you the extent to which the act of looking at that content has an impact on their are opinion.
LORD JUSTICE LEVESON
Or for how long they've looked at it. They may do online, but you can't say how long I read the front page, or the second page or fifth page of my newspaper.
DR UNGER
We have the same problem with all of these platforms. Radio is another good example where we know what people listen to and broadly for how long, but we don't know whether it's a background task, whether they're really focusing on it these things all go to this point about impact. The assumption is it's a useful quantitative measure but I think you have to be cautious not to apply too much weight to that consumption measure and reach
LORD JUSTICE LEVESON
I'm taken back to the evidence of a witness at the very beginning of the Inquiry who spoke about his choice of newspaper because of the crossword.
DR UNGER
Yes.
LORD JUSTICE LEVESON
Which actually doesn't tell us much about his interest in news.
DR UNGER
I think there is some evidence we can look at, so we did look at the importance that people attach to different types of content and you can see that there's some interesting results there. So, for example, there are some titles with relatively low shares but where individual consumers attach a high importance to that media. So Al Jazeera is an example of a title of a newspaper of a TV broadcaster that has a very low share but where those people who view it attach a high personal importance. At the other extreme, I think the consumer evidence we reproduce suggests that the Sun, which has a very high share the readers of that newspaper attach a relatively low personal importance to the newspaper. There may be reasons. They are reading it for the entertainment value rather than the news, for example. That is covered, I think, in one of the annexes around consumer research. I think that's the type of contextual evidence one can take into account, but it's not a simple metric.
MR JAY
Thank you. On the next page, page 23, 00555, the sector, you say, is innovating rapidly, changes can't be forecast, et cetera, and so you conclude, in 5.55: "The suitability of online measures in the broadest sense could be assessed during any full plurality review." So it's the same point that you made previously.
MR MACINTOSH
Yes.
Q. Can I ask you this: would these changes mean that a merger involving online providers would be a relevant merger under the Act or are you just looking at how the market is to be understood when considering the impact of a proposed merger on plurality?
MR MACINTOSH
It may not be a relevant merger under the Act as it stands today, but I think that the substance behind what we have set out in the report is that it should be encompassed in looking at plurality.
Q. I see. Triggers for a plurality review. The questions you set out at paragraph 5.58 at least really flow from the Secretary of State's questions which we looked at at the start but can we just understand the difference, insofar as it isn't obvious, between a metric based figure and a time-based figure.
DR UNGER
So the idea behind a metric-based figure, which I think a number of people have supported, is that if a particular company exceeded some metric I think normally market share is the metric that's discussed that would trigger a review. The difference with a time-based trigger is simply that the elapse of time would trigger a review.
Q. The advantages and disadvantages of the metric-based trigger, please?
DR UNGER
The metric-based trigger has some attractions in principle, in the sense that it might allow you to carry out a review in a way that is at that point in time when the concern arises and potentially targeted to the type of concern that arises. So we see some attractions in principle to a metrics based trigger. In practice, we're concerned this goes back to our broader concerns about the availability of metrics which, I suppose, are complete. We are concerned that that there is not a particular metric which would be ideal in these circumstances, and furthermore that the use of a metric-based trigger would, in some sense, subject the market to a continuous review. So really, I think particularly in the interests of certainty, we felt that the time-based trigger was better and that as long as the time period between reviews wasn't too long, then a periodic review would be able to take account of events that had taken place between the periods of reviews.
LORD JUSTICE LEVESON
Isn't there another disadvantage with a metric-based trigger, that if because some metric has been exceeded, like market share, you're suddenly going to require action to be taken to divest or whatever, whereas time based, there is an opportunity for warnings or discussion, for a rather more measured or less jerky response to changes in conditions?
DR UNGER
Yes. We talk about this particularly in the context of the exit of the News of the World, where deciding the right answer at the point where the News of the World had exited would not be the right thing to do because we did not know what the final outcome was going to be.
LORD JUSTICE LEVESON
Or deciding immediately before, not knowing it was about to exit.
DR UNGER
Absolutely. So the point is the market is continuously changing. There must be a point in time every so often when one looks at the market, but to not want that to turn into a continuous process of review where the market is continuously subject to the uncertainty that comes with that process of review.
LORD JUSTICE LEVESON
Another advantage of this, I suppose, is that if it's time-based, then there is less scope for concern that it is politically motivated?
DR UNGER
That's also true. The proponents of a metric-based review I think would argue that as long as the metric is sufficiently well defined, then it is still possible to have a trigger which is essentially automatic, and therefore
LORD JUSTICE LEVESON
I understand, but that assumes that you can press the switch and the answer comes out, that it doesn't require any subjectivity in the measurement of the metric.
DR UNGER
I think that's right, although this is not we did not end up going with the metric-based trigger, but I think that it is more straightforward to define a trigger that relates to metrics because you're not then making the final decision.
LORD JUSTICE LEVESON
All right.
DR UNGER
We are very clear that the final decision has to take into account judgment. It's not impossible, I think, to define a trigger which is automatic.
LORD JUSTICE LEVESON
All right.
MR JAY
Is there a danger, though, with your time-based review, that in a rapidly moving market, damage can be done to the interests of plurality where you have to wait four or five years?
DR UNGER
There is that risk in the time period. The time period would have to be short enough that you're able to deal with that.
Q. If it's too short, though, there are other countervailing
DR UNGER
If it's too short, you're making decisions before you know how the market would respond to the changes. You're making again, you're subjecting the market to continual review. So that is the trade-off.
Q. Your conclusion on the issue of exit triggers, 5.73. You say there may be merit in introducing an exit trigger but I think the suggestion is that you may be inclining against that; is that how you see it?
DR UNGER
I think we're cautious. We've left the option open at this stage and one of the further questions we've been asked is to consider whether that option may be realisable in practice. I think we're very conscious of the issues set out here, which are essentially overt: firstly, one doesn't know the final outcome at the point of exit and secondly, that in practice one may not be able to do much about an exit. So the situation is very different from a merger where the outcome is clearer and you can do something about it.
Q. And you can always assess the position ex-ante with a merger, but with an exit, as we've discussed already, it's difficult. The current position in relation to mergers I think is fairly clear. Again, one or more secretaries of state explained it to us. I think the position we're at is that the overall framework will continue to apply, but the issue is 5.78, for example, where they are going to bring online suppliers within the framework. Have I correctly understood the position?
DR UNGER
That's correct, and I think, as Stuart said earlier, our assumption is that online does need to be brought within the framework. The question is how.
Q. Your feeling is that it could be done by amendments to regulations rather than to primary legislation. Have I correctly understood you?
DR UNGER
That's our understanding, yes. I think there are different options. I think the public interest considerations could be more defined without changes to primary legislation. However, if there was a new framework that encompassing periodic review, then that's a different question.
LORD JUSTICE LEVESON
I don't see how you could perform a balanced exercise without taking online into account.
MR MACINTOSH
Absolutely.
DR UNGER
At a level of principle, it felt to us very easy to say online has to be included and then you get to the practicality.
LORD JUSTICE LEVESON
The whole question of plurality is very different from regulation, because of course, Ofcom is conscious that there is everything from Ofcom regulation of broadcast media to no regulation at all for some of these services, and then co-regulation/self-regulation in between the two.
DR UNGER
That's right.
MR MACINTOSH
Yes.
MR JAY
In terms of the definition of the media organisation, I think you're saying that aggregators should not be included within the definition, but online news providers and wholesalers should. Have I correctly understood it?
DR UNGER
I don't think that's what we were intending to say.
Q. Pardon me.
DR UNGER
I think we can see circumstances where aggregators might need to be included, but we also need to be careful that doesn't go too broad. I think the underlying principle is around where the exercise of editorial control is. If an aggregator is exercising editorial control as part of that process, then it may be important to include them. If not, then one wouldn't automatically want to bring in any aggregators.
Q. I've been asked to raise this with you. Can you explain, please, how you see a plurality review carried out because of a media merger will relate to any public interest consideration under the Communications Act?
DR UNGER
So is this the distinction between the periodic review we're proposing and the merger-based review? Sorry, can I just clarify the question?
Q. I believe it is. (Pause) Oh right. The question was more about the nature of the public interest test under the Enterprise Act.
DR UNGER
So our assumption is that that would continue in some form. That public interest, as I understand, is potentially triggered in a merger and that would need to continue in some form. That would need to sit alongside a new framework in some way. There are essentially two options there. One is that the two frameworks might co-exist, in which case I think we say here, the importance to avoid, for example, situations of double jeopardy or the two frameworks could be brought together. Those are both possibilities.
Q. A separate matter now is the role of discretion and complaints. Some have argued there should be an additional discretionary trigger, which immediately raises political questions: on what basis is the trigger going to be exercised? Who's going to make judgments? You come to the conclusion that there shouldn't be a discretionary means of triggering a review between periodic reviews but in other words, please, what is your objection to that?
MR MACINTOSH
I think it goes back to the question we've discussed earlier regarding whether or not we have a metrics-based system as opposed to time-based. It's the question of flexibility and ability to respond to events. On the one hand, if there's discretion, there is an opportunity to do that. You can see what's happening in the market, you can decide whether or not that potentially is having an impact on plurality and call for a review. However, as Steve has described in discussing the issue regarding metrics, that potentially creates an environment where there is ongoing and continuing uncertainty regarding the regulation of the sector and whether or not there will be future reviews, and it also does result in a situation where there's potentially considerable politicisation of the process, so that we basically concluded, at the end of our consideration, that it would be more appropriate to come down on the side of opting for time-based reviews without there being discretion or indeed without there being an opportunity to use complaints to trigger a review. That's essentially our conclusion.
Q. Yes. Can you explain for us though the point you're making in paragraph 5.87? "It's important there's some mechanism for deciding at an early stage what type of market events are likely not to be material." I'm not sure I followed that one.
DR UNGER
This was one particular issue, which is that at the moment, in relation to mergers, there is discretion essentially to decide not to carry out a review as well as to decide to carry out a review. We thought it was important that there may be a number of relatively small mergers between different media enterprises and we thought it was important those things automatically trigger a review every time that there was a fairly modest merger. So there's needs to be some mechanism for filtering those out early on in the process. At the moment, that's provided within the current merger regime and that needs to continue in some way.
Q. Thank you. The next topic is one where the Inquiry has received a range of opinions and that's the issue of caps, limits or prohibitions, as you put it, on news market share. You divide that question into three parts, as you explain in 5.89: "Is it practical or advisable to set absolute limits? What does a good plural outcome look like?" The question of sufficiency: "How do we balance absolute limits or prohibitions with issues of economic sustainability?" Now, the absolute limits or prohibition points we've had a number of witness who is have said there should be an absolute limit of 15 per cent, 20 per cent or wherever on one news provider in a sector and if it overtops the limit, there should be, I suppose on an extreme version, a divestment to bring that person lower than the limit. But what are the advantages and disadvantages of that sort of measure?
DR UNGER
Clearly the advantage of that type of measure is certainty, again. It's very clear what rules everyone has to the abide by, so it is an advantage. The disadvantage we saw here was around a lack of flexibility and I think at a high level there are two reasons why flexibility is important here. Firstly, I think we've already acknowledged that these metrics do not map on uniquely to a certain level of influence, that in considering influence it's important to understand a range of contextual factors, and implicit in any such structure based on absolute limits, you do not have the discretion to consider those contextual factors. That's the first point. The second point is really around sustainability. I think we recognised that I think particularly the newspaper sector is in decline, so you could have a situation where the application of absolute limits might go against the need effectively to build market share in order to survive. That's not to say that one would automatically allow that market share to just keep growing, but one at least needs the flexibility to balance off these issues of sustainability and plurality.
Q. You have commented expressly on the Enders Analysis proposal, which is having revenue as a suitable metric for an absolute limit, and we're going to hear that point elaborated this afternoon with Claire Enders. She is proposing 15 per cent of revenue, but that doesn't favour with you for the reasons you explain in paragraph 5.96. Can I ask you, please, to develop the points you're making there?
DR UNGER
The underlying point of principle is one that Stuart referred to earlier, which is that revenue is a good proxy for economic power, and I think the I think Claire Enders has been reasonably explicit about what their intention is, which is the intention their proposal is, I think, to limit economic influence, if you like, economic power. So it works in that sense. It clearly would limit economic power. That he is not what we are trying to do. What we are looking at is the question of influence over opinion and we do not think that revenue is a good proxy for ability to influence opinion. I suppose, to give an example, if one was to look at the revenues generated by Sky as a broadcaster and assume that its revenues were a proxy for the ability to influence opinion, then one would apply much more weight to sports broadcasting than news. That doesn't seem right, at least in this context.
Q. Is that what you're hinting at when you say that there are practical challenges associated with defining what revenues would be relevant for such a test?
DR UNGER
Practical challenges are beyond that point of principle. There are also, I think, questions for a company such as Virgin Media, which both provides content but a range of other services. There's a practical challenge as to how you separate out those different revenues. Quite often, the different services are bundled together. It's common to bundle TV and telecom services, for example. If you were to factor in the telecommunications revenues of companies such as Virgin Media and British Telecom into this sort of assessment, then I think you would get to the wrong conclusion.
Q. Thank you. You also look at the idea of platform-specific limits. Can I ask you, please, what was the rationale for doing that?
DR UNGER
Again, it comes backs particularly to this point about flexibility. We talked about this in the context specifically of both newspapers and TV. For newspapers, we were particularly concerned about this point about sustainability, that one needs to take account of the fact that it might be necessary to grow market share to survive. In the case of TV, we were conscious that applying simple limits without thinking about, for example, the governance structures that apply to the BBC would also be misleading.
Q. But I think you told us earlier on about the need to look across the different media to get a proper measure of plurality, so why is concentration within a platform relevant to plurality at all as opposed to competition?
DR UNGER
We felt they were both potentially relevant, but in an ideal world you would have a single metric which applies across media. Given that you don't have such a metric in quite that perfect form, it might be appropriate to look at platform-specific metrics within particularly newspapers and TV, because they are, I suppose, better established than those cross platform metrics that are available. So it's at least worth asking the question.
Q. Can I ask you, please, about the declining newspaper market point. It's basically an industry in decline we understand that. You say that: "Limitations in the declining market run counter to the need for newspaper groups to build a market share in order to survive." Is that in itself a sufficient reason not to apply market share limitations in the newspaper market?
DR UNGER
I think there's a reason for applying them flexibly. I think this doesn't say that you wouldn't be concerned if market shares became too high. It's simply that in thinking about that it's important to bear in mind also sustainability. I think it's worth noting that I think at the moment that is not such a big issue in the national press. It is already a very big issue in terms of local media, where I think we're already in a position where, in many local markets, the issue is really about sustainability, whether there's any local media, rather than the idea of plurality.
LORD JUSTICE LEVESON
Aren't there some rather softer factors in play here too? One could visualise a situation of a company that owned an enormously large number of local newspapers but sought to exercise no editorial influence whatsoever
DR UNGER
Yes.
LORD JUSTICE LEVESON
upon any of them. The considerations that would arise with such a company would be very different to a company that had fewer national titles, where the proprietor or owner, whether it be a company or individual, sought to exercise enormous editorial influence over what was in the press.
DR UNGER
That's right. I think the local newspaper question is a good example to take, because I think there's a general acceptance that what is important for local newspapers is their ability to hold local councils to account, therefore there is something important about having a certain level of local investigative journalism, but they do not generally take a particular political stance and therefore plurality is less important. That goes back to this point about these contextual factors, that the way in which proprietors influence the editorial process is really important.
LORD JUSTICE LEVESON
But then it becomes extremely judgmental, because you might have three different proprietors or four different proprietors whose approach to their own particular newspapers is extremely different, and to try and judge that and assess where it becomes inappropriate I would have thought was extremely difficult.
DR UNGER
Yes.
LORD JUSTICE LEVESON
And also very, very subjective.
DR UNGER
It involves a degree of judgment, but I don't think it's intractable, in the sense that if you look at newspapers, it is clear that some newspapers explicitly take a particular position. So the Scott Trust which governs the Guardian newspaper, that has a very specific remit to promote a liberal agenda. So it is clear what the position is. In other cases, arguments are made I think, for example, there's a particularly argument that's been made around the Times, which is around the extent to which the existence of the independent directors preserves editorial independence of that particular newspaper. That's contentious, but it's something that could be looked at.
MR MACINTOSH
Just to add to that, I think that one of the things that a review of this form might do is to shine a light on all these considerations so that whoever does this review tries to articulate factually what the position is in terms of consumption, who is using what media, who is active in the market, and, insofar as there are contextual factors which have a bearing on how you interpret what you see happening, that those are highlighted and made clear. Yes, judgment needs to be exercised at the end of it, but hopefully the review would help dispel prejudice insofar as there is prejudice influencing what is actually going on in the market today.
LORD JUSTICE LEVESON
Yes. You'll find it difficult to get to the facts too because if you take the particular example that you last mentioned in relation to the Times, there are different accounts of how that particular exercise has operated, which have been heard by the Inquiry, and how you would have to try and judge that sort of issue in the context of the technical work you're doing I would have thought would be not entirely easy to determine.
MR MACINTOSH
Yes. I don't think we've said anywhere in the document that we anticipate that doing this would be easy.
DR UNGER
I think I would add on that that we in the context of the PIT work, we essentially conclude there was a number of wide range of anecdotal evidence in relation to this is point and we didn't reach any conclusion on it. It's difficult.
LORD JUSTICE LEVESON
Right.
MR JAY
In the next section, you look at the 20/20 rule which, I suppose in line with your thinking about caps and about metrics, might lead you to conclude that this rule is right to be abolished, but your conclusion is I think, in a nutshell, that it should be considered by Parliament in the near future; is that a fair summary?
DR UNGER
Yes. I think the position is somewhat different from the general case, in that in this case it is very clear what the purpose is of the rule. It's to prevent a powerful newspaper owner from also taking control of the most powerful commercial TV broadcaster. So it's clear what the facts are, it's clear what the context is, so that differentiates this from our more general discussion. What we've said though is it really is a judgment for Parliament and I think particularly in the context of any new plurality regime, it would be necessary to consider in that context whether it was then possible to move this wall or not.
LORD JUSTICE LEVESON
The trouble with having a fixed 20/20 regime is that it puts it into stone and doesn't allow you to take into account the context or all the circumstances but it requires an over-arching review of the way in which you look at the issue, I suppose.
DR UNGER
That's right, and I think that point is illustrated by the evolution over, perhaps, the last decade or more, of these various ownership rules which
LORD JUSTICE LEVESON
And the evolution of digital television, which has multiplied up the number of channels and removed the original justification for regulation through the mechanism of the state which was to do with broadband width.
DR UNGER
That's right. So we've certainly not said
LORD JUSTICE LEVESON
Bandwidth, not broadband. Bandwidth.
DR UNGER
So we're certainly not suggesting it shouldn't be removed but this is really on our initial view was this was for Parliament. This was one of the questions that's been put back to us in the further questions from the Secretary of State and we'll need to consider that carefully.
LORD JUSTICE LEVESON
When are you going to come up with a conclusion?
MR MACINTOSH
I think we've said by the end of September.
LORD JUSTICE LEVESON
By the end of
MR MACINTOSH
September.
LORD JUSTICE LEVESON
September? I'd be very interested today see any of the conclusions you reach.
MR JAY
On the concept of sufficiency, on my understanding, sufficiency comes in once a plurality review begins and it's part of the wider public interest considerations under the statute?
MR MACINTOSH
That's correct, yes.
Q. So we're not here concerned with triggers; we're concerned with part of the qualitative assessment that you make as part and parcel of
MR MACINTOSH
Is there sufficient clarity of not, yes.
Q. That necessarily involves questions of judgment, of quality and I suppose quantity to some extent as well. You put everything into the mix in answering the question which the statute poses of you; is that a fair understanding?
MR MACINTOSH
That's correct, although I think what we've tried to do in the document, and in particular in paragraph 5.119, is to illustrate the broad factors and the sort of framework that one might bring to this. If you look at that, there is actually quite a lot there that can be described in quantitative analytical terms, to which you would add your understanding of context and to which you would apply your judgment.
Q. I've been asked to raise with you an issue about the fifth bullet point in 5.19, which is overall investment of commercial returns. The basic question is: why have you included that? Because some of those matters are about consumer behaviour, not market structure.
MR MACINTOSH
I think this is partly in looking at the state of the market at any one point in time, you would have to understand whether or not the operations were sustainable, because you may reach a conclusion based on today's judgment that everything is fine, but if it is actually the case that the economic pressures acting on the players in the market are such that they're not going to be able to continue, you would need to be aware of that in understanding how things might evolve. So an environment where there is plurality, where the actors in the market are earning sufficient returns to stay in the market is one where you could have confidence that plurality will be sustained as well.
Q. Is this a sufficiency issue or sustainability issue or both?
MR MACINTOSH
It's a sustainability issue.
DR UNGER
I think we saw sufficiency as being a matter of balance between those two. The risk is one takes an idealised view of what you would like as a plural media which doesn't take into account the economic realities and we need to take into account both.
Q. Your conclusion on sufficiency is 5.121: "It will be for Parliament to consider whether it can provide any further guidance on how sufficiency should be defined." Is this an area, though, where the Secretary of State could give statutory guidance? We've seen that statutory guidance has been given on the issue of media mergers because the Secretary of State, Dr Cable, referred us to the relevant guidance. Is this another area where it could be done by exclusive action rather than legislation?
MR MACINTOSH
I think the answer to that is yes and that's probably a matter for the Secretary of State to decide whether or not it's something that he or she would do as opposed to something that he or she would expose to Parliamentary debate.
Q. Sustainability. We've touched on sustainability, but where does this come into the plurality assessment? Is it part of the wider public interest concern which arises on any review?
DR UNGER
I think we saw this particularly as coming in, as I said, when we assess sufficiency. In assessing sufficiency, there's no point in something this idealised view of a plural market. It has to be a plural market that's economic and sustainable.
Q. So sustainability is a subset of sufficiency?
DR UNGER
Yes. That's an important element of sufficiency. It's the thing which it's the consideration that might lead you to take a less ambitious view of what is sufficient than you might otherwise.
MR MACINTOSH
Yes.
Q. I think in paragraph 5.126 you draw attention to the tension between plurality and commercial sustainability and that's exacerbated if you look at smaller geographic units. I suppose the tension is that the larger entities may be more commercially sustainable?
MR MACINTOSH
Yes, exactly. You could imagine a small geographic location where, if arbitrarily, one said no media provider can have more than 50 per cent of the local newspaper market, it may also be the case that no one can build a sustainable commercial business subject to that constraint.
Q. Does it follow from this that plurality may have to be sacrificed because of these economic realities?
MR MACINTOSH
It's more of a trade off than sacrifice but there certainly needs to be a balance struck, yes.
Q. Okay. Well, it's fair to say that you do see it as a trade off. It's paragraph 5.131: "The right balance between promoting plurality on the one hand and encouraging economically sustainable news media organisations on the other Again, you say that's a matter for the government and Parliament to consider. Parliament would be amending primarily legislation. Government might be doing it by issuing statutory guidance under the existing Enterprise Act provisions; is that right?
MR MACINTOSH
Yes.
Q. Can I ask you, please not going to ask you about the BBC since that probably is outside our remit but just some general points, finally, about solutions. Your report doesn't cover what solutions or remedies might be appropriate if a plurality review were to be find a plurality problem. What sort of remedies do you think are available and do they include behavioural and structural remedies?
DR UNGER
I should say that this is a further question we have been asked. It relates to remedies. It wasn't one of the original questions. So we haven't yet looked at the question in detail, but I think you can separate remedies into broadly four categories. I think that there are some behavioural remedies which promote internal plurality. Editorial independence and the undertakings that we negotiated with News Corp Sky that would be an example of those kind of behavioural remedies. There are clearly structural remedies, divestments, which increase external plurality. There's another category of behavioural remedies which may be relevant, which are really around the standards that apply to different platforms. There's obviously some overlap there with the board of discussion around standards. Finally, there are these positive levers to increase plurality funding, benefits in kind and so on.
Q. I see. Then this final question. If, hypothetically, a periodic review were to identify a lack of plurality, how would you identify which players ought to be subject to any remedies?
MR MACINTOSH
I think it's a little bit difficult to do in the abstract, in the sense that you need to conduct a review to understand whether or not there does seem to be a problem, why that problem's arising, and then decide on what might be the appropriate remedies, which may or may not have implications for individual players.
Q. I suppose it depends on what the diagnosis was
MR MACINTOSH
Absolutely, absolutely.
MR JAY
That question was a bit ambitious. Those are all the questions I have for you.
LORD JUSTICE LEVESON
Do we know, Mr Jay maybe you'll be told from your right what questions the Secretary of State has put back to Ofcom?
MR MACINTOSH
Those are in the public domain.
LORD JUSTICE LEVESON
Right, that's very good. You're probably aware that my terms of reference include making recommendations for a new more effective policy and regulatory regime which supports, among other things, the plurality of the media, and to make recommendations for how future concerns, among other things, about regulation and cross-media ownership should be dealt with by all the relevant authorities. Here, of course, you were answering questions which the Secretary of State specifically asked you and I appreciate that you now have another series of questions. By the time you've dealt with all those questions obviously you're not me and I'm not bound by it but will you have provided a view on each of these issues that I've just raised with you?
MR MACINTOSH
I hesitate to say that we will have done so comprehensively, but we will have touched on a number of the essential features. At this stage we have not been asked by the Secretary of State to architect a new structure for the way in which plurality might be considered, but rather to respond to a series of specific questions which in turn have led to a number of follow-up questions. Those touch on many of the key issues which you identified, but if one were then to proceed to a set of recommendations in future, there may be some other issues which are not on the list of questions the Secretary of State has asked us.
DR UNGER
I would add it may also be that in relation to many of the some of the questions we've been asked, I suppose, are essentially technical in nature around implementation of some of our earlier recommendations. Some still go to matters of judgments, which we may still conclude are more for Parliament, and that is the discussion we need to have with our board still.
LORD JUSTICE LEVESON
Well, it would be absurd for me to reach my conclusions in ignorance of where you are on these various matters, and it would be absurd for me to do so without having the benefit of such experience you have in these areas, even if the Secretary of State hasn't specifically asked you.
DR UNGER
Okay.
LORD JUSTICE LEVESON
So I would be very grateful if, within the same time frame that you're already working to, you cast an eye back on the issues that I have to consider. I'm not asking you to provide me with answers in the back of the book, but the benefit of your experience to such extent as you feel able.
MR MACINTOSH
We'll be more than pleased to consider that, obviously.
LORD JUSTICE LEVESON
Thank you very much indeed. Thank you both very much for your assistance. o'clock. (1.00 pm)
