Morning Hearing on Wednesday, July 18, 2012

Professor Steven Barnett , Max Mosley and Dr Damian Tambini gave statements at this hearing

Hearing Transcript

(10.00 am) MR JAY Sir, may we start off today by reading in some statements? I have provided you with the list. LORD JUSTICE LEVESON Yes. MR JAY They've been circulated to the core participants so they can be read in and put on the system. LORD JUSTICE LEVESON So these are a number of statements, from New Zealand Law Commission, from a number of press councils, from a number of groups such as Professionals Against Child Abuse, from the Trades Union Congress, the National Council for Training of Journalists, City University of Europe, Data Centre Europe, Finnish Press Council, Index on Censorship. I repeat, as I have previously said: nobody should think that because they're not called to give evidence, their submissions are not being considered. Everything is being considered. The choice of those who give oral evidence obviously is affected by the time available but I'm very grateful to everybody for contributing to the work of the Inquiry. We'll read all these statements into the record of the Inquiry. MR JAY Thank you. The first witness today is Mr Mosley, please. LORD JUSTICE LEVESON Thank you very much indeed. MR MAX MOSLEY (recalled) Questions by MR JAY LORD JUSTICE LEVESON Mr Mosley, you've previously been sworn in in the Inquiry, some considerable time ago. Rather a lot of water has passed under the bridge. You took up my invitation to consider the criteria for a regulatory solution. I'm very grateful to you for doing so.
A. Thanks for the opportunity. MR JAY Thank you, Mr Mosley. We're looking now at your proposal for a new system of press regulation, which you submitted on 8 June of this year.
A. Yes.
Q. Are you content to attest to the truth of this statement?
A. I do.
Q. You identify, first of all, four major problems. In other words, could you explain to us about those?
A. Well, the first one I think is absolutely fundamental. It's that at present if you wish to bring proceedings for defamation or breach of privacy, it's extremely expensive, so expensive that probably 1 per cent or thereabouts of the population can afford it, and I think that's completely wrong. It means that the majority of people are deprived of any remedy in those areas. LORD JUSTICE LEVESON I'm not even sure it would reach 1 per cent.
A. Indeed. I think that's probably right. Because for an injunction, something like ?10,000 minimum. For trial, you have to be prepared to put a million pounds at risk, and I think yes, a very small percentage of people who can do that. LORD JUSTICE LEVESON It's one of the problems about justice generally, but in this area it's particularly expensive.
A. Yes. MR JAY Thank you. Your second, third and fourth major problems may well be self-explanatory. The second one depends, I suppose, on the view the Inquiry forms of the evidence it's received as to the culture, practices and ethics of the press. Then you make criticisms about the PCC, which, again, are in issue before the Inquiry. There's evidence about that. Then you refer to the Internet. Your basic proposal involves the creation of a new body, the Press Tribunal, which you're going to tell us about in a moment, but also renaming the PCC, or rather creating perhaps a new regulatory body, which you would want to call the Press Commission. So it's not, as it were, son of PCC, but a fresh body; is that right?
A. That's right. I think the I think it very important that the press play a major role in making the rules, and indeed the current Editors' Code Committee it's not perfect but it's perfectly usable. It's just that it needs enforcing. I believe that there's a strong argument for, on the one side, having the body that makes the rules, and then, entirely separately, a body that enforces them, which body would never come into contact with most of the press because they'd observe the rules. It's only if they broke the rules they'd come into contact with the enforcement body. I think keeping those separate then overcomes any suggestion of state control of the press, because the only thing you'd need a statute for would be the body to enforce the rules. The body that makes the rules could it needs, I think, more outside representation than it has at the moment, particularly as it would, in fact, be the successor to the Editors' Code Committee, which is, of course, entirely editors. I think we need the public to be involved in making the rules, but then that can be a non-statutory body, provided there's a statutory body to stop breaches of the rules. LORD JUSTICE LEVESON Do you have a view upon the extent to which serving editors should remain responsible for creating the rules?
A. I don't think they should create the rules but I completely see that they should play a part in the discussions that lead to the rules. I don't think they should be excluded completely. If I may, I have a great deal of sympathy, in a way, for the press when they say, "We don't want outside interference", because I spent 18 years running a body that was responsible for all of international motorsport, not just Formula 1, and what one dreaded was well-meaning people from the outside coming and interfering in something that they didn't fully understand. If I could give you one quick example: when Ayrton Senna was killed in 1994, the entire resources of the Italian judicial system focused on the question of why did the car crash. Now, on the roads, that's exactly what you want to know. You want to avoid accidents, so why the car crashed is relevant. But in racing, they're always going to be crash. They're operating at the limit of human ability. So the interesting question was not why did he crash, but why did he get killed and what can we do to make sure that when they crash because it's inevitable they won't get killed? And there was us focusing on the question that mattered, and ten years of proceedings through the Italian judicial system focusing on the question that didn't matter. That is an illustration of something which I think everyone understands, that if you've been in an area for 30-odd years and you have expertise, you really do know what matters and what doesn't matter, but the quid pro quo of being allowed to get on with it is you must succeed in what you're doing. In other words, you have to stop killing people. In our case, you mustn't kill the spectators, you mustn't kill the drivers, or you must do every reasonable precaution to avoid it. I think it's the same with the press. I think they should be allowed to get on with making the rules, but with outside help. LORD JUSTICE LEVESON The parallel may not be perfect, Mr Mosley, because it may be that in your motor racing example, both systems wanted to achieve the same ultimate goal namely safer motor racing, or with less risk whereas it may be that the public and the press have slightly different objectives in connection with the publication of material.
A. Sir, up to a point, but the thing is that I think the objective of the press is to inform the public about things which they need to know, which are of significance, plus entertain the public, and those are perfectly legitimate aspirations, and equally the public want that. I think they only come into conflict, the public and the press, when the press wants to do something that impinges on the rights of the members of the public. LORD JUSTICE LEVESON But they do impinge then, and there isn't that degree of disconnect in your motor racing example.
A. This is true, sir, but I think that's why one needs then a sort of long stop, a safety net, whatever one likes to call it, of a regulatory a statutory body that can actually stop the press going too far. MR JAY Mr Mosley, in terms of the tribunal that you wish to see set up, you recognise that it will need a statutory underpinning for all sorts of reasons, not least Article 6 of the Convention, because people are going to be forced to use it; is that correct?
A. Yes.
Q. Can I try to understand one or two characteristics of it, page 00476. This is a tribunal which will also deal with issues of accuracy, where there may or may not be a cause of action at law; is that right?
A. Yes. I think there are a lot of complaints, particularly from groups of people, that they or their activities are misrepresented by the press, and there should be some mechanism for questioning the press when they do that, if they do it.
Q. So the remedy if there weren't a cause of action would be correcting the inaccuracy but would not be to award damages, but there may be the possibility of a fine because you refer to fines
A. Indeed. In that particular case, I would envisage that the journalist and the representative of the group would come in front of an adjudicator and it would almost certainly get settled there and then, because a decent journalist will recognise if he's got it wrong.
Q. Do you visualise, as part of your PC system, the Press Commission, that there would be an anterior requirement for complaints first to be dealt with within the newspaper organisation before going to the tribunal?
A. That's ideal, and of course, sometimes in an emergency, if the story's about to be published and you want to stop it, that might not be possible, but generally the first port of call would be the newspaper.
Q. In other aspects of your system, there would be a prior notification requirement but it wouldn't be an absolute requirement, in my understanding of the third bullet point on this page. One would have to demonstrate a strong public interest reason for not notifying; is that right?
A. That's right. I think there's been the difficulty which was alluded to when I first gave evidence, about there is a public interest in not notifying but there tends to be a confusion between the public interest in the subject matter and the public interest in the question of notification itself, and I'm concentrating there entirely on notification itself. But there are there could be circumstances where it would not be in the public interest to give notice, but they're very rare, and when that arose, or when a newspaper thought it arose, under what I'm suggesting, the newspaper would approach the tribunal ex parte and say, "We're thinking of publishing this story. We think it's not in the public interest to give notice; do you agree?" And I think that would be a safeguard for the newspaper on the one side but also for the member of the public who is the subject of the story on the other side, and would avoid the situation where the entire decision is taken by the editor, and of course somebody's life can be ruined instantly.
Q. Wouldn't it be better, though, for the advice to be obtained by and received from the PC rather than the tribunal, since there might be a perception of conflict of interest if the tribunal were then subsequently to adjudicate on the reasonableness of the advice it gave?
A. I think if the tribunal gave the advice that it was in the public interest to withhold, then the newspaper would be in the clear, because it can't do more than that. I think if it approached the PC about that, the Press Commission, then there could be a conflict of interest because they, after all, are the people making the rules and you cross that border between rule-making and rule enforcement. LORD JUSTICE LEVESON They couldn't be entirely in the clear, because the person affected must be able to challenge the invasion of privacy in some way, and I think Mr Jay's point is that if you've gone to the tribunal and got an order, then it's quite difficult to see how the person affected could challenge an order which had already been made.
A. I think they wouldn't necessarily be challenging the order; they would be challenging the breach of privacy. So I would have throughout the breach of privacy is what they're going to complain about. LORD JUSTICE LEVESON I see.
A. And then they could say, "Well, the tribunal made a mistake. It should never have said this could be published without notice. I think an adjudicator or even a judge would have given me an injunction." But that would not in any way prejudice a claim for breach of privacy arising out of the story that was published. LORD JUSTICE LEVESON Do I gather that you're saying that this would be definitive; in other words, the publisher couldn't go ahead then and publish, even if he was damned?
A. I would say no, he has the right to publish, but very much at his own risk, because if then the plaintiff comes along and says, "But you were told by the tribunal not to publish and you did", I think that would be a case where the tribunal would impose, if the case be proven, a substantial fine. MR JAY Thank you. You're proposing a network of adjudicators who would be provided in the same way as perhaps immigration adjudicators or employment judges in the statutory jurisdiction which apply in those cases. Can I ask you, please, how the Internet would be brought within the scope of this tribunal?
A. I think that's a very, very important part, because there are a lot of cases now where things happen at local level on the Internet, for which there's, for all practical purposes, no remedy. For example, if a group of school children are bullying another schoolchild on Facebook, or if on Facebook or Twitter they are abusing one of the teachers, nobody can do anything. Unless the parents of the child happen to be extremely rich or the teacher happens to have a large private fortune, there's nothing they can do. It's very local and it just needs dealing with. With a system of adjudicators, which can operate right down to local level, that could be dealt with. That's an immediate problem that could be dealt with immediately. More broadly on the Internet, when somebody's in America and they're blogging offensively about somebody in England, that is something that must wait for the evolution of, I would say, international conventions, which are bound to come, but that doesn't stop us putting in place a mechanism to deal with what is actually the main problem at the moment from a pure fairness and justice point of view, which is these local abuses, where there have, I believe, been suicides.
Q. Thank you. In terms of the procedures, you're contemplating an informal system, that lawyers will rarely be there. It will be free of charge to both parties, but the adjudicator would have power to you call it wasted costs. That presumably is designed to cover frivolous or vexatious cases; is that right?
A. Yes.
Q. In terms of the powers of the tribunal, most of what you say is self-explanatory, but there may be two significant issues. The first is: how would cases be sent to the High Court, or rather on what basis? Would it be the tribunal taking the view that it's simply too big a case, too important a case, to be dealt with at tribunal level?
A. Exactly. I think that if it was simply too big to be dealt with in this way, and too difficult, then it might have to go to the High Court, but I believe those cases would be rare. I think that I probably shouldn't say this in this forum, but I think there is a tendency, particularly in defamation, to overcomplicate things, to make things very sophisticated, very intellectual, very complicated, where actually the essential issues are relatively simple. I believe if you have the two people, the journalist and the subject, sitting there, in the overwhelming majority of cases it will get sorted out. LORD JUSTICE LEVESON Did you see or have you read the evidence of Sir Charles Gray?
A. Yes. LORD JUSTICE LEVESON Because that's the impact of the Early Resolution scheme to which he referred.
A. I think there's a great deal to be said I think if you get people together early on and they meet as human beings with somebody there mediating the adjudicator in this case there is a great tendency to reach agreement. I can think of a little case I had with one newspaper where the journalist wrote something he shouldn't have written it. It took weeks. It cost the newspaper a five-figure sum, and it is a journalist I know, a sports journalist. It could have been sorted out in ten minutes. I could have explained to him why it was wrong, he would have seen the point immediately and that would have been that. I think there are a lot of cases like that, but once it gets, dare I say it, into the hands of the lawyers, it tends to get very complicated. MR JAY Thank you. The other possibly significant point is that there's power in the tribunal to prevent publication of a story.
A. Yes.
Q. In other words, to issue an injunction. A very few other people have argued for that sort of power, on the basis that injunctive relief, almost as a matter of principle, really, should only be ordered by the High Court. Why do you feel that a tribunal of this sort should have that range of power?
A. Because if it doesn't, we would be back to a situation where the only people with a proper remedy for breach of privacy will be the rich, because only the rich could afford to go to the High Court, and I think we absolutely have to have a procedure where if somebody who has no money knows that a story's coming out that is a clear breach of privacy, that they should be able to go somewhere and get someone to tell the newspaper not to print it. The obvious place is our tribunal, and if you weigh the sort of principle that these injunctions should only be issued by the High Court, which I can understand, against the fact that if you insist on that principle, nobody's going to be able to afford to do it, or hardly anybody, it seems to me justice requires that the tribunal have that power.
Q. There may be an issue as to whether it's a contempt of well, it would be a contempt of the tribunal to disobey an order of the tribunal, but whether statute could confer express powers on the tribunal to treat it akin to a contempt of court. Maybe we'd have to think through that.
A. I would have thought that with something like the tribunal, all it could do is impose a fine, but as we're talking about fines which are potentially quite big because I think the fines should be expressed in a percentage of group turnover rather than actual figures then I think the disincentive to breach the order would be significant.
Q. Yes, so the power to award a substantial fine if you disobeyed the order of the tribunal, that would cater for or might cater for my concern, since only a brazen newspaper would wish to run the risk of such a significant fine.
A. (Nods head)
Q. Would there be power in your tribunal, if it detected prima facie evidence of generic or systemic breach of the rules, to refer the matter to the PC for consideration?
A. I don't think so, because I think once the PC's made the rules, then the tribunal would enforce them, and one of the rules obviously would be that where you had harassment or systemic breaches, the tribunal would take action, and if you take let's take an extreme case. The pursuit of the McCanns in the Daily Express. That would be at a certain point, the tribunal, had it existed then, would have said to the Express: "This is not acceptable", and imposed a significant fine. If it had continued, the fine would have been very significant indeed, and undoubtedly Mr Desmond would have given orders to stop.
Q. So the function of the PC then is only as a rule-making body. It's not there generally to set standards, to enforce standards outside the sort of activity which the tribunal would be undertaking? Have I correctly understood your position?
A. The position my suggestion is that it would make the rules and it would set the standards, but the enforcement of the standards and the rules would be a matter for the tribunal. So clearly there would be some there's always an element of judgment in these things: have the rules been broken? Have the standards been observed? But those judgments, in my submission, would be taken by the tribunal.
Q. Yes, I see.
A. I think, if I may say, the essence of it is the separation of powers, and I think if you're going to have a proper system of functions, you have to separate the legislature from the judiciary.
Q. Might it not be appropriate to have a lesser form of sanction? I think the only sanction is fine, but in less serious breaches of the rules, why not have a power to admonish or publish an adverse adjudication, which, although if that were the sole sanction would not be sufficient I think we can agree about that might be appropriate for first-time offenders, if I can put it in that way, and the less serious cases. What do you think about that?
A. I think that's entirely reasonable, and obviously there would be a power under this system to order a correction and order something to be printed that needed to be printed, and there could be no fine, a nominal fine or, in appropriate cases, a large fine. It's just important, in my opinion, that the power exists, because unless the tribunal has these powers, it won't be able to enforce the rules.
Q. What interaction, if any, will there be between the PC and the tribunal? Are you envisaging a strict separation of powers between the two?
A. Strictly speaking, yes, but inevitably there would be, if only informally, discussions, because the tribunal might well say to the Press Commission at some point: "The way you framed that rule would be difficult to enforce, this is difficult, that's a problem," rather like on a national level there is a certain sort of intercourse between the judiciary and the legislature and the government here, and I think that would be entirely reasonable. But generally speaking, the two would be separate.
Q. In terms of financing the tribunal, you're proposing a small levy on publications with circulations above a certain level. Is this just financing the tribunal? What about the PC? How is that going to be financed?
A. I don't think the PC would really require, other than very modestly, for a secretariat, any substantial sum, so I didn't give that really any thought at all, but yes, the tribunal would be funded by partly by a levy, partly by the fines, but of course, because the almost all the adjudicators would be part-time, if the number of offences decreased, the costs would decrease. If they increased, the fines would cover some of it. So I think it would be partly self-financing. The actual Press Commission I think would require very, very modest financing LORD JUSTICE LEVESON But it still has to perform the complaints-handling function, doesn't it?
A. I wouldn't have thought so, sir, no. LORD JUSTICE LEVESON Who would do that?
A. Well, the complaints handling would all be done by the tribunal. So, for example, if there's a mass of photographers outside the house, you would call up the tribunal and say, "Can you please get this stopped?" It would take care of all that that was outside. LORD JUSTICE LEVESON I see.
A. Sorry, outside rule-making, I should say. MR JAY It sounds as if the tribunal might be quite an expensive body to maintain year in and year out, because you would need I wouldn't say an army of adjudicators, but you'd need a fair number of those. Indeed, the range of functions we're referring to here is significant, and the volume of business, in the early stages certainly, may be quite high. Have you costed it, Mr Mosley?
A. Well, crudely, very crudely. I have said that I believe the maximum levy would be one penny per copy sold or distributed. That, on the basis of the published figures, would produce about ?47 million a year, and I think that's greatly in excess of what this would cost. If you go for a tenth of a penny per copy, that's 4.7 million, between 4 and 5 million. That ought to cover it, because if there is a lot of activity, then there are going to be some fines, and if you have serious cases with big newspapers, you might get serious fines, and it's difficult to predict what the level of activity would be because what one hopes is that you would have all these part-time adjudicators, which would cost a certain amount to train and to instruct, but they would actually have a day job. They would only be doing this occasionally, and if there was not too much activity, then the cost would come right down.
Q. Two issues, really, about the adjudicators. If you look at analogous tribunals, whether it be employment tribunals or immigration tribunals, they're appointed as if they were indeed, they are judges. So the state appoints them, the state pays for them, the state pays their pensions and everything else, and insofar as there are disciplinary issues, which of course happen very rarely, the state administers that. Your regime sounds more like a private regime where the newspapers are solely responsible for funding, but are we looking at adjudicators who will only be working for the newspapers or are we looking at adjudicators who might, for part of their time, be doing immigration cases but occasionally be doing press cases? How do you see it working?
A. I saw that slightly differently. I thought that the adjudicators would normally be, for example, a solicitor, and he would have his normal practice, and he would be a little bit like senior members of the bar who are part-time judges, or there are deputy High Court judges and there are Crown Court judges.
Q. Recorders.
A. They do it on a part-time basis. So they would be paid when they were active but only when they were active.
Q. Yes, but paid by the state. A recorder or deputy High Court judge is paid by the state.
A. Paid by the tribunal. The tribunal's funds would come from the levy. So they're indirectly paid by the newspapers, but of course the levy and the fact that it went into an independent body which then paid these people would make it quite independent of the newspapers.
Q. So the state could still, as it were, appoint and directly pay for these adjudicators, but the state will then receive the levy from the newspapers, which will, in effect, cover the costs? Is that the system?
A. That would work perfectly well.
Q. The other issue is the expertise of the adjudicators. Are we looking for people with no media expertise? Are we looking for people who will sit on panels, in which you would include someone with media expertise? How do you see that panning out?
A. I was thinking of there are different approaches to this, but I was thinking of senior solicitors who had been on a special course about the sort of issues they're going to have to deal with, and would have that level of expertise, but they wouldn't be like a full-time some of our leading solicitors who do nothing else. They would have a good knowledge well, they would have a knowledge of the law anyway, and they would have a good knowledge of the sort of issues that would come up, and then they would be kept up to date with regular retraining and of course probably a monthly newsletter, just to keep them on top of the thing.
Q. There may be problems there. I mean, one sort of problem if your adjudicators are appointed from those who are media lawyers, someone might say, "Well, he or she acts for claimants, will come to the job with a certain perspective; he or she who acts for defendants So there's that sort of problem, but if you go the other way and say, "We're going to choose solicitors or barrister of a certain level of seniority who are not media lawyers", then they'll come to this perhaps from a position of a level of ignorance, frankly. You can give them some training, but they won't be well familiar with the quite complicated issues they'll be asked to adjudicate on. Do you see that difficulty?
A. I completely see that difficulty. The thing is that the system and one has to say that right at the beginning would not be perfect. Even what we have at the moment that's beyond the reach of all but a tiny minority of the population is not perfect. So the first thing to say is it has to be free of charge. You then have to reduce the level of expenditure to the point where the state, society, whatever one likes to call it, can afford it. It's then a question of finding the most efficient way of deploying the very limited resources which are available, but it seems to me one must not allow oneself to be diverted from the starting point, which is that it must be free, and it must be free both to the claimant and to the press. You would certainly get some solicitors and barrister who were not experts would probably make mistakes, but that is inevitable if you reduce the costs, and I would argue that there are even mistakes when you have the enormous expensive procedures. But the mistakes would be very few and far between. Fundamentally, a lot of these issues are not that complicated. It would be quite rare that it was complicated. I mean, the really difficult cases, you could send it to the High Court, to an expert judge.
Q. I'm not sure you don't underestimate the difficulties here, particularly if there aren't going to be lawyers representing the parties. You'll have adjudicators who may be excellent lawyers generally, who may know very little or nothing about media law, trained up to a certain point, which will not be, frankly, a very high point at the start, and then they're thrust in to potentially difficult cases without a lawyer acting for the parties to help them out. That could lead to a fairly rough level of justice, some might argue.
A. It would sometimes sometimes inevitably lead to a rough level of justice, but of course, you would have the safety net of the High Court and things like that. But in the end, the fundamental question is: should it be free or not? If it has to be free, then I'm not saying for one moment that the system I put forward is the ultimate or the best. All I'm saying is it absolutely has to be free, if you're going to have justice and the rule of law applying to the entire population, and then do the best you can. I set out my suggestion for six requirements. The first is that it's free, the second is that it should not involve the courts or lawyers, and then also that there should be the powers similar to the court, that it should be quick, efficient and so on. I think those requirements are absolutely right, and I would say that what I was tempted to do was to say: well, in my submission, we need to satisfy these six conditions. Then I thought: if I do that, somebody will say, "Well, that's fine. Your condition is it has to be free, it has to replace the courts and so on; how are you going to do that?" So I thought: I'll try and set out, to the best of my ability, a scheme a regulatory scheme which works but without claiming that it's the ultimate. I'm sure it can be improved. All I do claim is that whatever we do should be available to the entire population. LORD JUSTICE LEVESON What's important about what you've done, Mr Mosley, is not the detail; it's the fundamental principles which you believe ought to underpin whatever it is we're doing.
A. Exactly that, sir, and it would be very presumptuous of me to say I can sit down and produce the blueprint. The only reason I've done that is so that I couldn't be accused of putting forward something that couldn't be done. LORD JUSTICE LEVESON No, it's not at all presumptuous. You're doing exactly what I invited you and a large number of other people to do, to help me try to find a way through that works for everybody.
A. Yes. MR JAY Thank you, Mr Mosley. Those were all the questions I had.
A. Thank you very much. LORD JUSTICE LEVESON Mr Mosley, thank you very much indeed.
A. Thank you. MR JAY May we move on directly to the next witness, who is Dr Tambini, please. DR DAMIAN TAMBINI (affirmed) Questions by MR JAY MR JAY Your full name, please, Dr Tambini?
A. Damian Tambini.
Q. Thank you. You've kindly provided us with three documents. The first is a document dated 3 July 2012, which deals generally with freedom of the press issues. There's secondly a document which you have coauthored reforming the PCC, which I'm just checking the date. I think it's I'm not sure when it was written, but no, June 2012. We can see that. And thirdly, there's a document about plurality, which again is June of 2012. Are you content to put these three pieces of evidence forward as your formal evidence to this Inquiry?
A. Yes. LORD JUSTICE LEVESON Dr Tambini, as I've said to other people, it's clear that an enormous amount of intellectual effort has gone into these pieces of work. I'm very grateful for the assistance that you and your colleagues have provided the Inquiry.
A. A pleasure. MR JAY First of all, about yourself, you work at the Department of Media and Communications within the LSE, but please give us a snapshot of your career and the expertise you bring to these issues.
A. Relevant to this Inquiry, I was director of the media policy project at the Institute for Public Policy Research, and later I directed the programme in comparative media law and policy at Oxford University and since 2006 I've been at the London School of Economics. I have served as a government adviser to the communications White Paper 2000, and as a member of the Communications Consumer Panel, which is a non-executive board within Ofcom, a statutory body.
Q. I know you want to spend more time discussing your papers on the PCC and media plurality, but may we just look briefly at the first paper of 3 July 2012 dealing with freedom of the press issues. The evidence there overlaps to some considerable extent with the evidence we heard on Monday from our ethicists, but are there any points that you would particularly wish to bring out, either because you believe strongly in them or you feel that they haven't come out properly through the evidence we heard on Monday?
A. Well, my intention with submitting this short note was to respond to the questions that were posed because I thought they were very important questions. I think we've seen with the Inquiry as it's gone on the notion of the free press being used as a principle and a reference point in a way which is usually helpful but I would say not always extremely helpful, and we need to be careful in using the term. It may be helpful if I if you'll permit me, I'll tell a short story for an example of when it's used in an unhelpful way. As a policy adviser in the early 2000s, I, whilst at IPPR, commissioned quite a lot of research on privacy and the press. In collaboration with the pre-Ofcom regulators, I commissioned, for example, a large survey on the attitudes of the public to the public interest in the context of different forms of media intrusion, and I also published a book on the topic. Now, the reason this is relevant to the notion of the free press was because I was thinking about what, as a very low level policy wonk, you might do. There were clearly some issues there coming out of the research in terms of public concerns. At the time there was a Select Committee inquiry looking at similar issues, there was a controversy about whether a privacy law might be necessary and the impact of the Human Rights Act, and thinking about how to take things forward, having developed this research, I, as normal in these kind of circumstances, began to speak to people close to the government advisers, et cetera and one of the things which I found very memorable about this conversation was the phrase which met me from one of these relatively senior policy advisers: "We won't go there; that's freedom of the press." This alerted me to the fact that whilst, motherhood and apple pie, this is not a nobody would ever argue against the freedom of the press, you must really be a little bit concerned about when this term is being used in a way which is, if you like, a slogan to protect press interests rather than what I would hope is being meant in terms of a principled objection to forms of censorship. I can go into, if you would like, some description of some particular problems which I've outlined in the note with the term and how it is sometimes used.
Q. We're not under any particular pressure of time, Dr Tambini LORD JUSTICE LEVESON I think that's helpful.
A. Thank you. LORD JUSTICE LEVESON Because what you have just said resonates with a number of concerns which we've tried to put to a number of witnesses, so carry on.
A. One of the I think it's quite helpful to see this in historical terms. Those the framers of the US constitution, and in particular the First Amendment to the US constitution, in 1789 were concerned with a world in which printing presses were the means of mass communication. They were concerned with establishing the principle that congress should make no law that would abridge freedom of speech or of the press. In 1950, when the European Convention on Human Rights was being drafted, the press aren't mentioned. We are concerned with freedom of expression. My concern is with the conflation, if you like, that occurs with the modernisation of this term "the free press", because whilst in the past it was a good proxy for the means of communication, through the 20th century the picture is a lot more complicated. It comes to mean the distinction between broadcasters, which can be regulated because of the justifications of spectrum scarcity, and the press, which should be somehow free from those obligations that apply to broadcasters. If we come forward to the current situation, the notion of a particular freedom which applies to a means of delivery rather than to a function like journalism or to speech in general, becomes, in my view, slightly more problematic, and it's at this point really that you have to raise more questions about whether the term is being used in a very useful way. So in particular, if you take the term "the press" in "the free press", sometimes it's taken to mean printing presses the means of reproducing content, messages sometimes it's taken to mean journalism, and sometimes it's taken to mean the media in general. If you like, this conflation, I would argue, helps those who want to use this as a general principle. So the Inquiry has been examining various forms of intervention which could be described as infringing press freedom, and I would like to be concerned with the underlying question of rights to freedom of expression are they being impacted? rather than with the slightly abstract concern of the principle of the free press being offended. So we need to be mindful of that sense in which the notion of the free press conflates those ideas. LORD JUSTICE LEVESON Well, of course, part of the complexity of modern life is that there is a conflation within means of delivery. The scarcity of bandwidth which justifies restrictions on broadcasting is no longer tenable because of digital mechanisms for deploying material, and the difference between reaching a large audience through printed documentation has been utterly undermined by the development of the Internet, blogs, Facebook, Twitter, all that. Therefore what is, in your view, the underlying principle that should be respected when one talks about the freedom of the press if that means, and should that mean, the freedom of journalists to be able to investigate issues within the public interest going beyond those rules which might otherwise encompass others and otherwise to such extent in which they intend to inform and educate.
A. I sympathise quite deeply with the desire for simple principles, so I don't wish to disappoint. LORD JUSTICE LEVESON But you're just about to.
A. My view and it's my personal view is that the search for very simple guiding principles about press freedom in relation to the privileges of journalists, for example, is not easily resolved because we are going through a very rapid process of change, very fundamental change in obviously the means of communication, and the longer debate about whether there are rights which apply to journalists as a profession, my view and I think it's something of a minority view is that, to a certain extent, there are. There are certain immunities and privileges which apply to journalists which don't apply to others. But, as I say, sorry to not be more helpful, being able to nail it down to a succinct principle, but LORD JUSTICE LEVESON I'm not talking about a single principle, necessarily. I'm simply seeking to define some lines, if I can, and if you say, "Well, actually that's simply not possible", that itself is significant, because one then has to find a way of drawing boundaries which respect individual rights of expression and recognise the value that the press by which I mean generically, not the printed press but that journalism brings to our society but falls short of permitting what some may say are behaviours that do not comport with the public interest and do not fit in with the public interest considerations.
A. Because the other fundamental point is that press freedom, like freedom of expression, is not absolute. It's qualified and it's relative and you have to balance with the rights of others and other rights. But the way I conceive of it is of, if you like, a social compact of rights and obligations. Journalists do have various forms of privilege and rights, both in law and more broadly, but they are conditional. They are there and historically you can see the development of those rights and privileges they are there because they serve a certain function in society. The implication, of course, individually or collectively, is that those rights, including the right to self-regulate, can be removed if they do not meet ethical standards or if they fail to serve that function. MR JAY I'm reminded that although the press is not expressly mentioned in Article 10, it is mentioned in Article 6 in the context of excluding the press from an Article 6-compliant trial. That can only be done in exceptional circumstances. But it may be that the modern jurisprudence on the convention will bring the press in to Article 10 in any event. Perhaps we needn't
A. But not because they are the press or newspapers. Not because there's a fundamental distinction based on the medium of delivery.
Q. But because in some sort of way they are exercising a qualified right to freedom of expression. But you would wish to emphasise the qualified nature of the right; even if the press come into the convention through Article 10, it doesn't give them any absolute position?
A. I would agree, and I would add because we've been discussing freedom of expression, which is, for many, a very delicate issue that I'm entirely committed to freedom of journalism and freedom of the media, and I'm simply entering a note, which is really to stress that use of the term "press freedom" in a way which is a defensive sectoral interest, really, rather than a genuinely principled stand is an enemy of freedom of expression and freedom of journalism. LORD JUSTICE LEVESON Yes, it can't be used as a club to prevent anybody from entering through the door to question how you or they behave. Is that your point?
A. (Nods head) Which brings us back to the story I started with. MR JAY Thank you, Dr Tambini. May we look now on your co-authored paper on self-regulation, or rather regulation more generally. This approaches the topic from a number of angles, but one of those angles brings in to play European and international comparisons. No doubt there you've been assisted by one of your co-authors who may have majored on that topic.
A. Yes.
Q. The first chapter, "Press Councils in comparison", 01461. On the internal numbering of the paper, it's page 6. You point out there that the United Kingdom is in somewhat of a minority in the context of self-regulatory bodies, since in most other comparable systems, there are joint enterprises between journalists and media owners or publishers, yet in the United Kingdom, in common with Estonia and Denmark, the publishers are, at it were, sole entities within the self-regulatory system. Is that a fair summary?
A. That's right. I think it matters, when you think about self-regulation in practice, who is involved in setting up and designing the overall structure. I'm glad you mentioned the co-authors, Manuel Puppis and Sally Broughton. Manual's research, on which this is based it would be in German if we hadn't done this. He simply looks at press councils and analyses them according to a very simple framework, and finds that the UK system is really an outlier because of this basic structural feature. Successful press councils tend to involve representatives not only of owners/publishers but representatives of journalist associations and journalist unions. That's the normal model. Whereas in the UK, we see that the founding of the self-regulatory body was wholly led by publishers.
Q. To what extent, in your international or pan-European comparisons, has there been, as it were, independent or lay representation in self-regulatory bodies?
A. Our tables are simplifications. All press self-regulatory bodies do involve some form of lay membership. The normal model in fact involves publishers, journalists or journalist associations and lay membership. They don't tend to be involved very early in the process, and you could make the argument that they tend to be bolted on rather late to add a bit of legitimacy. You saw in the case of the Press Complaints Commission gradually, over time, the number of lay members being increased and it's only relatively recently we have a lay majority on the council of the Press Complaints Commission.
Q. Thank you. Your second table on page 7, our page 01462, looks at structural elements of self-regulatory bodies and here we're looking at the question of tiers. Can I ask you, please, to explain that for us?
A. We are analysing how the internal boards within the Press Complaints Commission press councils are structured, and in particular, looking at the relative role of these boards and the presence or absence of these boards as separate entities within the commissions. So, for example, in just to pick an example, Austria has a body of trustees, a council, an ombudsman and a complaints commission, whereas Denmark only has a main council and a separate complaints commission. This is relevant because there is quite a broad range of different tiers and levels within press councils, particularly in the light of a discussion which I know has been going on about whether it may be appropriate or useful to involve an ombudsman, for example, as a first call for complaints, and that's something that we recommend should be considered. What the table does is simply analyse just present for you the range of different structures. It doesn't go into a huge amount of detail on what's behind these tables, and they are, of necessity, simplifications.
Q. You say that such two tier systems have proven to be successful. What's the evidence base for that?
A. Well, the evidence comes from two research projects which are based on interviews and comparison of codes, one which was conducted by Professor Manuel Puppis and published, as I mentioned, in German, I think 2010, and one which is a study which I'm happy to provide to the Inquiry published by myself, which is a three-year European Commission-funded study of self-regulation published in 2008. So the evidence comes from interviews from stakeholders and also analysis of codes and numbers of complaints and public awareness. The data sources are secondary, so they're slightly different in the cases of the different press councils, and the data you have there is from Manuel Puppis' research.
Q. Thank you. The next table looks at the scope of ethics bodies for journalism. In most other jurisdictions, the ethical body is composite, in the sense that it covers the printed press, broadcasting and online. It's only in a few countries such as ours that it only covers the printed press, but there may be all sorts of historical reasons for that, which are maybe quite complicated to analyse. May we move on to the next point, level of state involvement in self-regulatory bodies. I think you mean here two differently related aspects. The first is the degree, if any, of statutory underpinning and secondly, whether there's a state levy or whether it's self-funding; is that correct?
A. Yes.
Q. Pardon me, carry on.
A. If I can expand, state involvement is another one of those areas where there are huge sensitivities, some of them principled, some of them based on self-interest. Some of the elements of proposals for reform in fact, I think probably most of them contain some form of incentive, either access to new forms of defences, which could be accessed by those titles that self-regulate and contribute to the self-regulatory body, for example in the case of the Hugh Tomlinson proposals and obviously these would require some sort of statutory basis. Another reform that could be necessary to reform the system, and which would bring it closer to a co-regulatory framework, is that the body itself should be established and recognised in statute. But the point we make here and a third element could be funding by the state. For example, if a journalist association was involved, many countries have that part of the funding shared by the state, if the journalist association doesn't have the resource to pay it. My view is that and the view of my co-authors is that all of these things can be made to work, and can be made to work in a way that doesn't of necessity conflict with freedom of expression, but the necessary safeguards have to be put into place. This is a solvable problem.
Q. Thank you. Can you just explain for us, please, your pyramid of press self-regulation? It's on page 01464. Until complaints, I suppose, reach a certain point, they can be dealt with internally either by self-regulation or by statutorily underpinned regulation, but there may be a point when the ordinary law comes into play, either contemporaneously or separately? Is that the concept?
A. That is. There's are more fundamental related point. Part of this is about efficiencies. You do want a system which doesn't involve too many cases going through formal adjudication, and you want a system which is accessible to complainants, also those that can't fund huge costs, but you, at the same time, want a system which does establish some pressure for culture change, some pressure for a behaviour change. The consensus is that the Press Complaints Commission was a complaints-handling body but it didn't really establish those pressures for culture change. So whilst, lower down the pyramid, larger numbers of complaints will indeed be handled by press councils, ombudsmen, different forms of accountability mechanisms much larger numbers of complaints it's also essential that somehow in this system, mediation and settling of those complaints isn't something which is just simply under the radar, as I think did happen in the Press Complaints Commission, but it is brought somehow into a system where complaints are understood and addressed and monitored in ways which stand some chance of then impacting press behaviour and development of journalism ethics and practices. So whilst, lower down the pyramid, you do want alternative accountability mechanisms, you at the same time need to design a system which creates incentives to change.
Q. Thank you. The next subheading is the make up of press councils. LORD JUSTICE LEVESON Just before you go on, there's a sentence in bold where you say: "There is a role for the state in self-regulation of the press." Some might say that that's a contradiction in terms.
A. Well spotted. LORD JUSTICE LEVESON I'm pleased about that.
A. Any future publication will correct that. This is of course co-regulation, by definition. LORD JUSTICE LEVESON Oh, it's a mistake. All right. I thought there was some profound all right.
Q. The first point you make we're looking here at the number of council members is that you come to the conclusion that considerations of efficiency and cost effectiveness suggest the body dealing with complaints should be kept rather small. Can you explain why you're drawn to that conclusion?
A. We're drawn to that conclusion to a certain extent, it's a trivial, technical and slightly obvious point. In Germany and Luxembourg, more than 20 people serve on the council. That would strike that strikes us as excessive. It's also the case in Switzerland and the Netherlands, but there are, in those countries, particular reasons to do with federation and language groups and representation of different social groups which explain that. In the UK, we would see no reason to have such a large council on the co-regulatory journalism council.
Q. But you do want to see an appropriate mix of public members, journalist members and editor members, so once we have three constituencies, it could be said we're looking at somewhere between 15 and 20, are we, as a sort of optimal number balancing the various component parts? Is that a reasonable conclusion?
A. That is a reasonable conclusion, but I wouldn't say certainly not higher than that, possibly slightly lower than that.
Q. In terms of appointment, which is page 12, 01467, the position which obtains now is that control over appointment of members tends to rest with the founders. Presumably, though, a more desirable system would be a higher degree of independence in relation to the appointment process; is that reasonable?
A. Absolutely. And everything I've said really comes with the same general thrust, which is that the overall ownership and control of the Press Council should be more independent and more visibly independent from the owners and the publishers. I can say a little bit more in general terms about why that is and why we have to be mindful of it. Obviously, there are a range of approaches to appointment of Press Council members. There are a number of countries in which the state or the government does appoint some council members. I am not particularly drawn to that approach. In fact, I think I would go as far as to say I am personally against it.
Q. Thank you. In terms of powers of the press councils, procedures or dealing with code violations, you make two points, really, on page 13, 01468. First, that it's important that press councils have the power to initiate cases. Could you explain that one for us?
A. Just to take the example of the Press Complaints Commission, the power to initiate complaints has really only extremely rarely been used. I believe it does exist, but the ability, for example, in relation to privacy violations or in relation, for example, to the McCanns, to act also when there are no complaints the Press Council seems to have been very reluctant to do that. But the as I said, the power is there. I think the power should stay there, and it would enable the particularly if the co-regulatory body was involved, an ombudsman, potentially on the Irish model, that body should have the power and use the power to start investigations of its own accord. There may be, for example, in relation to collective victims of misrepresentation in the press, who currently have a lot of difficulty with complaints there may be significant areas where the ombudsman would be able to improve awareness, improve journalistic practices and act as a kind of a feedback mechanism, and part of that would be that they would be able to initiate some complaints. It's not something I would see done very frequently, but the regulator in general needs to have more powers and more freedom of movement. LORD JUSTICE LEVESON Isn't that part of a rather wider piece, because the PCC at the moment may, as you say, initiate a complaint of its own, but one of the complaints that's been made to the Inquiry has been that it frequently refuses to take up complaints unless there's an absolutely direct link between the story and the person who is advancing the complaint. So it won't take up a third-party complaint. Generic complaints by groups are, if not positively rejected, then discouraged on the basis that that might be thought to be interfering with the ability to be partisan, irrespective of accuracy.
A. Mm-hm. LORD JUSTICE LEVESON Therefore it's been suggested and I'd be grateful for your view that actually the whole thrust, the ethos of the Press Complaints Commission, as it has existed, at least hitherto, has been to control down rather than to widen out the potential basis upon which they will look at what the press has been up to. Is that fair?
A. I think that's fair. I think it is, if you like, structural. So the safeguards and fire walls and internal structure of the body really needs to be looked at very carefully. If I might just take a couple of steps back and refer to something that Ed Richards said in his evidence a couple of days ago. He made a quite brilliant point, I thought, about really understanding the fundamental incentives which apply in self-regulation. So we shouldn't assume all self-regulatory bodies are similar, and he made the point that, for example, advertising self-regulation there's a very clear self-interest, if you like, an enlightened self-interest, on the part of the advertising industry to regulate itself, because it's necessary in general terms to maintain, for example, trust in advertising. So accuracy and various other code articles can be applied. So advertising self-regulation tends to work quite effectively. That's not the case, for example, in online gambling self-regulation, where it's my view that the industry does not have an interest in restricting its market by dealing, for example, with public policy issues of problem gambling. So comparing self-regulatory bodies is not really comparing like with like. You have to understand whether the incentives line up and whether that magic of enlightened self-interest on the part of the industry to regulate itself actually comes into play. I would take, in relation to the press, the logic just a step further and suggest that we should begin to think in relation, for example, to phone hacking or privacy violations more generally, begin to think about how the incentives line up for the industry, particularly in newspapers. Privacy violations provide a huge amount of resource. They provide front pages, which sell newspapers. No economist, as far as I know, has actually valued that, but if you have a self-regulatory body which is not in some senses, it might have the value of keeping statutory regulation at bay, but it may not have, at its core, the objectives of actually dealing with those kinds of public interest issues. LORD JUSTICE LEVESON That might be the sole entire common interest of everybody. Keeping statutes away.
A. Mm. MR JAY Is that a convenient moment to have a break? LORD JUSTICE LEVESON Certainly. We'll have a few minutes. (11.22 am) (A short break) (11.30 am) MR JAY In terms of sanctions it's not altogether clear on my copy because of the way it's been printed I think only one press council has the ability to fine; is that right, Dr Tambini?
A. Yes, the Swedish.
Q. But you recommend, bottom of the page, a combination of the obligation to publish that's the name and shame point
A. Mm-hm.
Q. and a Press Council that can initiate cases is the strongest model. In terms of your conclusions on the next page, 01469, you're contemplating a new council which should be jointly formed by owners and journalists and on which presumably there should be some public representation. I think we've covered that point. Whether it should regulate all news media, including broadcasting well, that's quite a big point, if I may say so, given the current status of Ofcom and the position of the BBC. If we pass over that one. But look more carefully at item 3: "There's a role for the state in self-regulation." I think, again, defining our terms, we're talking about co-regulation possibly, aren't we?
A. If I may just clarify in relation to regulating all news media, I would argue that for broadcasting there's a potential, possibly at a later date, to bring fairness and privacy complaints to this body, and for Internet services, I would argue an initial period in which this would be a voluntary system would probably be the way to go forward and also maybe a size threshold could apply in the event that there was any obligation to take place. But, sorry, the role of the state?
Q. Once there is a state role in the system, inasmuch as it has some statutory underpinning, we're either in the realm of co-regulation or the realm of state regulation. It isn't, I think, self-regulation. Would you agree with that?
A. We have discussed that point and I agree.
Q. What you contemplate is a series of incentives which will impel people to participate, so it's not a compulsory statutorily underpinned system but a voluntary one with some sharp incentives; is that how you see it?
A. Yes. There is because the incentives have been discussed quite a lot, I should say that particularly when you have financial incentives there may be a continuum. If the financial penalties for being outside are too great, it may be very close to an obligation to either join or simply carry too much liability risk. So you'd need to be mindful of that.
Q. Yes. Can I be clear, item 5 LORD JUSTICE LEVESON When you say I need to be mindful of it, do you mean to say I should not go that far, or I should try to go that far?
A. I'm thinking of some experience in other countries where, for example, defamation, sometimes privacy claims, can be used to shut newspapers, if the liability costs are so high that in effect what you're proposing is a compulsory system. So it may be a question of calibrating those incentives, insofar as that's possible, to make clear that if you want there to be the option of staying outside it and running the risk, if that's what the intention is, then the incentives aren't such that there's simply not a choice. LORD JUSTICE LEVESON But there will always be a choice, and one has to be very careful that ultimately one isn't seeking to differentiate the operation of the law.
A. Mm-hm. LORD JUSTICE LEVESON But if one takes litigation costs merely as an example, why isn't it perfectly legitimate to say, "You can join this system and then have access to a cost-limited mechanism for the resolution of disputes which would be available to those who wish to complain about what you were doing. If you don't join the system, then you run the risk that the state will say to you: if you lose, well, you have to pay all the costs that actually somebody else had to incur because you didn't go into the system, and if you win, why should you get your costs, when if you'd been in the system, the person who is complaining about you could have ventilated their dispute without incurring great expense themselves?" What's wrong with that?
A. Nothing. You have clarified that in my mind. Thank you. LORD JUSTICE LEVESON Well, it's only an idea. I've not decided anything yet. MR JAY Item 5, the body deciding upon complaints. This is in your two tier year system, on my understanding. Within that system, there will be a dedicated complaints body; is that right? And you're making recommendations as to how it should be comprised?
A. Yes. Just to enter a caveat, I was reminded during the break by my co-author that the earlier point about numbers of people serving on councils should be clarified, because much smaller numbers serve on the actual complaints-handling body in many cases. So it might be a lower number. But yes, you're correct in that clarification of point 5.
Q. Thank you. Then the proactive more outspoken point we have probably covered that already. It's taking cases on your own initiative and third-party complaints. May we move on now to your other paper, which is on plurality and media power. I think we can move straight to, on the internal numbering, page 6, which is our page 01480. It's under tab 82. The basic philosophy here: "Why intervene to protect media pluralism?" Can you tell us about that?
A. I think it would be useful if I linked this to the discussion of the remit of this Inquiry and what this Inquiry's asked to do, if you'll permit me.
Q. Mm-hm. LORD JUSTICE LEVESON This time you're dealing with two different collaborators?
A. There are many watching the Inquiry unfold, I've had the distinct impression that media pluralism is treated as an add-on, and at the centre of the Inquiry is a reform of self-regulation, whereas I and a number of colleagues see it the other way around, not only reading the terms of reference of the Inquiry but looking at statements made by the Prime Minister. For example, last summer, the importance of market structure in explaining the situation in which we find ourselves cannot, in my view, be overestimated. I'll just quote David Cameron from last July: "Because party leaders were so keen to win the support of newspapers, we turned a blind eye to the need to sort this issue, to get on top of the bad practices, to change the way our newspapers are regulated." Now, you can look at this statement in a variety of ways but I would suggest focusing on the first part: "Because party leaders were so keen to win the support of newspapers It relates to my earlier point in relation to public policy in terms of no-go areas of public policy. Just to encapsulate the importance of making strong recommendations to deal with the pluralism issue, I would just simply observe: if I was advising an incoming government, whether that was the New Labour government or the Cameron government, I would advise them not to alienate significant media interests. The reason for that is market structure, concentration of media ownership, which I think we've heard a lot of evidence has led to, in the past 20 years is it too strong to say a disaster, really, in terms of democratic legitimacy in this country? So that is not a new problem. Going back through successive royal commissions of the press, this issue of media concentration has been discussed, it's been discussed in countries all over Europe and there are policy frameworks in place to deal with it, and in the paper we discuss some of those. But if I can just note a couple of things draw to the attention of the Inquiry a couple of other things. A judgment of the Grand Chamber of the European Court of Human Rights just last month gave a judgment which affirmed the positive obligation of states to protect media pluralism. That's the Trenta Italia Secta v Italy(sic), and this builds on their previous decision from 2009. So there is a positive obligation on states to protect media plurality. I think what distinguishes this, just to wrap up LORD JUSTICE LEVESON Hang on, what was that case about and what was the judgment in it?
A. The case was about a broadcaster that was awarded a licence by the regulator in, I think, 2000 in Italy, but then was not actually awarded the frequencies to broadcast. This was viewed within Article 10 of the European Convention on Human Rights as an infringement not only of freedom of expression but of this positive obligation to promote a plurality of points of view and broadcasters within an audiovisual system. LORD JUSTICE LEVESON Mm?
A. So if I can just draw this point together. Plurality obligations, which include structural limits on media ownership and also internal pluralism, as you've been discussing, are fundamental. I think that's what sets this Inquiry out against previous, for example, commissions on the press. Previous royal commissions on the press were dealing with a hypothetical problem that might emerge. However, this Inquiry is dealing with and it's acknowledged in the quote that I described from the Prime Minister a problem that has clearly happened. There has been a long-term systematic failure to protect the public interest in relation to particular media interests. That is a distinction and that is why I would argue the Inquiry should be focusing more than passing attention on media pluralism issues. I'm sure it will. MR JAY Yes. Within the limitations, if any, imposed by the terms of reference. Of course, it's for the Inquiry to understand what those are and the Inquiry is quite capable of doing that. Can I ask you, please, to develop the specific technical points which you set out in your statement? The first is the measurement issue, which is section 2, page 8, 01482. You probably heard the debate yesterday as to whether we should be focusing on news and current affairs, perhaps to the exclusion of all else, the Ofcom view I don't think is quite that, but it's the primary consideration or whether we should be, as a matter of principle, going wider to all forms of media content. You, I understand, subscribe to the second school rather than the first; is that correct?
A. Yes, as a suggestion, but we acknowledge Ofcom's point that it is a trade-off, really, between what's practical just in terms of measurement and what is desirable in terms of a full assessment. We think it is possible to have a full assessment, although I should I don't think it's mentioned in paper say that what you might tolerate is slightly higher limits when it comes to more general media genres. 20 per cent rather than 15 per cent, for example.
Q. Can you explain for us, please, if you look at the bold sentence or it's rather a clause, the middle of page 9, 01483 it says: "At minimum, separate considerations should be given to affirm its position in the market for news and current affairs as well as across all genres." What do you mean by that, Dr Tambini?
A. I think it's relevant to refer also to the recent Ofcom report, which sets out some methods, and I would argue without specifying really whether we're speaking about triggers for a review or absolute caps or some form of monitoring and reporting as part of a continuous review process. So we need to specify what these measures are for. In this context, we're speaking about caps, and within that, the periodic review which would assess whether those limits on media ownership are being approached and so forth. But within those reviews, I think it would be possible to measure both of those things and provide advice and data on both of those things
Q. Sorry, "those things" are first the firm's position in the market for news and current affairs, secondly I'm not quite sure what "secondly" is.
A. Secondly is the position in the market across all genres.
Q. Can you explain that for us? First of all, what precisely do you mean by that, and how is this going to work?
A. What we do in this paper is not offer you a fully complete, all bells and whistles system for measuring and limiting media plurality. We offer some advice and comments on proposals of others.
Q. Mm.
A. But within a system of limits on media ownership, we're simply proposing that we make a number of points about what the best methodologies are, comparing the methods of which are used in regulators in other countries, and we find that it's possible, for example, to make a we make the claim that audience metrics, which are based on time that audiences spend with different media and different media companies, is probably the best metric. The point I'm making here is that we should use those metrics to measure those things separately and they may be considered by a regulator separately in order to form a judgment about whether limits have been breached.
Q. Okay. Now, relevant firms you'd wish to include online providers of media content. All of them or some of them?
A. The method that we're suggesting draws on the Ofcom share of references approach. So to a certain extent, we would which is basically a survey, which asks media users what of a list of services they could they recall having used recently. Now, that obviously begs the question: what is on that list? And you could have a list which is based on a size threshold, on existing measures of audience, audience rankings. There are a number of data sources available of the most visited websites, for example. So just in practical terms, I would say those most visited online sources and aggregators, search engines, which we know are the most used and most visited should be included on that list and that would prompt people to provide the data in the survey.
Q. Wholesale or retail. That's page 10. You favour looking at wholesale levels because it's more comprehensive. I think that one is probably self-explanatory, but relevant indicators is something I invite you, please, to explain to us. The table, unfortunately, hasn't come out very clearly in my copy. Do you see table 1 on page 01485? Just briefly explain to us what the common indicators are, first of all.
A. Okay. What this table does is set out a description of different methodologies which are used in Italy, Belgium, France, the UK and there are two measures for the UK. And what the table is trying to explain is my fundamental observation about particularly the UK framework is that it's subject to an unacceptable level of delays and challenge. One of the reasons for this not the only reason is the measures which are used. There has been a long debate about what are the most appropriate ways of measuring media plurality, and I can say a bit more about that, but the for example, in Italy, revenue shares are used. This was the proposal you discussed yesterday in relation to Enders Analysis' proposal of a cap on revenue shares. That's the system which is used in Italy, which indicates a proportion of revenues within a specific media market. In Germany and Germany's an interesting case, which might warrant looking at a bit more closely they have a different policy objective in mind. I think one of the more fundamental reasons that this policy area has been subject to so much challenge and difficulty is because of the lack of clear policy objectives, and in Germany the policy objective is not simply plurality of media sources; it is what they call "Meinungsmacht", power over opinion formation. And they measure, in relation to in particular, to television, exposure standard audience indicators for audience shares when they're taking into account when they're trying to work out if a television merger a merger involving a television owner breaches their limits. It's interesting just to build on this a little bit to observe that for me, the fundamental issue is this issue of clarity of policy objectives. In the UK, we have a plurality system which and we've analysed this in a longer paper has the objective of promoting diversity, a different range of view points and I'm thinking of the Enterprise Act, section 58 description of what must be taken into account in the event of a merger. But it also has the objective, for example, of guaranteeing freedom of expression, accuracy, and a sufficient plurality of persons, which could be a proxy for opinion-forming power. This contrasts in turn with the US approach, which is much more just concerned with diversity. I think in the UK, we have particular problems because we are asking too much of the merger tests and we're not asking them very clear things, and those things that we're asking the merger tests and the merger framework to achieve are sometimes in conflict with one another. This is going beyond the point about measures. You can imagine a market, for example, where a decline in the number of providers would not result in a reduction of diversity and this has been empirically proven whereas usually a decline in the number of providers almost always provides a reduction in opinion-forming power. So the fundamental problem, as well as the issue of measures and as I've said, the measure we favour is similar to the Ofcom share of references. We think audience measures are better, but the more fundamental issue is clear policy objectives and distinguishing between the objective of diversity of media content and the number of voices, which is, I think, a particular problem. I think this might be something that the Inquiry can help clarify.
Q. But can I clarify where you're coming from? If you look at the relevant sections in the Enterprise Act, 58(2)A and 58(2)C, which you've helpfully set out at page 14, 01488, are you saying that we should amend the statute so as to remove the references to the need for accurate presentation of news and free expression of opinion so we're just left with 58(2)B and 58(2)C?
A. Well, in a merger context, we're not saying that, and I think we're reasonably clear that we're actually saying that these objectives should remain. I think it's an issue for guidance, for clearly identifying measures, criteria and metrics which enable each of those different objectives to be more accurately measured and taken into account, and I'm not sure I have an answer. I may be doing nothing more than pointing out in a problem in this particular case where you have conflicting objectives between diversity and opinion formation
Q. I'm not sure whether they're conflicting, Dr Tambini. Where is the tension between what we see in section 58(2)A and section 58(2)B, for example? They're entirely harmonious objectives, aren't they?
A. There may be cases where if you think of US newspaper markets, which tend to be local or regional monopolies it's an internal plurality point, really. Because they are monopolies, they have to represent a wider number of views. Secondly, there's an economic theory called Hotelling's effect, not because it has anything to do with hotels but because the economist who advanced this idea was called Hotelling, which suggests that in certain sizes of market it may be five or six players you have a tendency to cluster around the centre of the market. This is usually illustrated with the idea of two ice cream salesmen on a beach. They end up back-to-back selling vanilla, whereas if you have one, they might have a wider range of flavours and they might walk around the beach. But there are good economic reasons why the five major news networks in the US were all covering the OJ Simpson trial continuously, which is not diversity, and you do not always solve that by having more. You can have an increase in diversity having less. The same is not true in relation to the sufficient plurality of persons, which I would argue is a proxy for this opinion-forming power. I can provide a reference to our longer paper, where we develop that point, and there are some references there.
Q. I still don't quite follow it. The persons point is only relevant to cross-media mergers, section 58(2)C. Parliament has decided when we're looking at newspaper mergers we're not interested in number of persons; we're interested in sufficient plurality of views, which I think precisely addresses the concern you're making. That's why Parliament has expressed itself in that way. But in any event, my question was: what is the conflict between the sufficient plurality of views criterion and the accurate presentation of news and free expression of opinion criteria? There isn't any, is there?
A. Well, there may be it comes to a point, also, of market exit, and I think that's part of the intention of these clauses, is when a regulator faces a choice between allowing a news outlet to close and allowing them to merge. In the former case, you may have problems in terms of
Q. Sorry, closing newspapers isn't within this regime at all, is it? Only to have a merger.
A. Well, the public interest considerations, if you are to permit the merger, involve a consideration of whether and I think we have seen this in relation to, for example, the Sunday Times when a newspaper claims that it is in financial difficulty and may close, therefore should be permitted to merge even though it breaches the limits. If it's permitted to close, that may have detrimental effects for free expression of opinion.
Q. The merger was allowed to take place because otherwise it would have closed, and that was why it didn't have to go to the Competition Commission. You'll remember the provisions of the Fair Trading Act 1973, section 58, I think. LORD JUSTICE LEVESON The big argument in relation to the Sunday Times was whether it actually fell within that category at all. That was the argument.
A. Mm-hm.
Q. Yes. Okay. Can we look at your policy recommendations, please, Dr Tambini? LORD JUSTICE LEVESON Before we do and I'm very keen to do so I'd just like to focus a little bit on what you said at the very beginning of this analysis, which was to suggest that the terms of reference really should be centred on plurality rather than regulation, and that it may be that the terms of reference had been misunderstood. I don't want to take too legalistic a view about the terms of reference I'm conscious that that's a criticism that's been made of earlier inquiries but on the other hand I have to be rather careful not to exceed what I am required to do. The Inquiry is into the culture, practices and ethics of the press. That's part 1, paragraph one. It identifies four particular problems: contacts and relationships between newspapers and politicians, contacts and relationships between press and the police, the extent to which the current policy and regulatory framework has failed, including in relation to data protection, and the extent to which it has failed to act on previous warnings. So that's the context and within culture, practice and ethics, of course, is the relationship between the at public. You can talk about regulatory framework and the word "including", which I certainly recognise does not exclude issues of plurality, but let's go on and look at what I'm required to make recommendations about: "For a new and more effective policy and regulatory regime, which supports, amongst other things, the plurality of the media." So that's all to do with a regime. So that's a structure which best supports media plurality. Do you say that that allows me to descend into the detailed at a particular level that's a percentage, whatever metric you want to take up as to what newspaper organisations should be entitled to own in this country? Or am I there to advise upon the structure that should be in place so that an appropriate body can make a decision, because I have to pick, in (b), for "how future concerns about regulation and cross-media ownership should be dealt about with by all the relevant authorities", including in part, government, et cetera.
A. Mm-hm. Obviously it's for you, and I welcome the chance to LORD JUSTICE LEVESON We'll agree about that, but I'm asking for your views.
A. My fundamental question is: why is it in there? Why is there the reference to the plurality of the media in these terms of reference? I don't think it would be convincing to argue that it is in there in case the self-regulatory structure that you suggest somehow impacts on plurality of the media. I would argue that it is in there because of the reasons I mentioned: not the ethical failures that we've heard so much about this year in themselves, in terms of phone hacking, et cetera, but because of the more fundamental problem, which was the cover-up, what is viewed as a failure by various institutions and politicians to deal with this. It is that which is explained by the problem of a concentrated press. So, just to repeat the point, this Inquiry has been asked to deal with these issues in the light of what has clearly been a failure and the admission of a failure and the admission of a need to kowtow to press interests on the part of politicians. For me, that's my interpretation of these terms of reference. LORD JUSTICE LEVESON I have to be rather careful because I happened to be present while these terms of reference were written, so I know how they developed, and I'm very keen merely to construe them as they now exist, but I would like to go back to my question. I recognise the point you make. It's there because of the concern that too much attention was paid to very powerful press interests. That's the concern and that's what we're looking at, and one would have to consider a system which allowed the state to find a way of moderating that influence so that it didn't run counter to the public interest. I understand that. But my question was whether you say that goes further and requires me to say: "I don't think any press interests should be allowed to own more than 10, 15, 20, 25 per cent", however you want to define it. Because that, it seems to me, is the thrust of what you're saying here.
A. Where we are in the policy cycle is that it's presumably for you to recommend and for Parliament to LORD JUSTICE LEVESON Oh, I agree about that, yes.
A. So my view would that be recommending indicative percentages is where the Inquiry should be. There is a further difficulty, as I'm sure you're aware, which is the nature of the current interplay between the government, Ofcom and the provision of advice. The advice which was provided to this Inquiry by Ofcom is not advice which designs a new system according to any particular criterion. That is because Ofcom regards itself as a non-policy-making body with very little discretion; it is simply answering the narrow questions which Ofcom set for it. So one of the things which it may be possible to do in terms of that provision of advice is ask Ofcom more specifically, and with a clearer set of policy principles in mind, for some more specific advice. LORD JUSTICE LEVESON Now, that might be true, and I might recommend that that should be done and that might indeed produce a number, if that's the way forward. But that's very different from me seeking to produce a number, because what concerned me and it's that point that I was taking in the very large quotation that you include on the second page of this paper on 13 June 2012. That may concern me in having to get to grips with measurement mechanisms and all sorts of competition expertise, which, in the confines of the timeframe and the skill set that is engaged in the Inquiry, may not be the best use of its time I put it no higher than that which is why I asked the question that I asked you.
A. I come back to my answer, which again, which is that it may be the best use of Ofcom's time, but Ofcom the problem of what Ofcom is being asked to do is a real one. It's coming from the government but the Inquiry has a separate view on what the problem to be fixed is, and the Inquiry has been asked to come up with some solutions, which is why I think there are two separate processes here. One is that the government is asking for advice from Ofcom, but if the Inquiry has a different view on what Ofcom should be suggesting and maybe wants to request advice from Ofcom more broadly on what the policy framework might look like, I think that's a feasible one. LORD JUSTICE LEVESON I think I have asked Ofcom rather more broadly. I think I asked a question of them yesterday
A. But Ofcom needs to be given clearer direction in terms of what the principles on the objectives are. LORD JUSTICE LEVESON And it may be that I ought to identify principles and objectives, but given that all this is recommendation, as you identify the policy cycle accurately to be, I'm just not sure whether you're not suggesting that I should be jumping two stages ahead of myself and making some assumptions about what Ofcom would say is technically feasible and technically well-balanced in an area where everybody agrees there is no clear metric, there's no magic bullet that solves any of these issues. It requires a number of competing interests to be taken into account which I might not be the best suited to take into account. So question whether I have to leave a rather greater flexibility to push the decision-making along without being definitive or dogmatic. I'm not trying to withdraw from a debate that I ought to be having or making a decision which I ought to make, provided I am the best person to make that decision, because one thing I assure you of: any decision I make outwith my expertise is going to be subject to rigorous challenge by anybody affected by it. Actually, decisions that might be said to be within my expertise are likely to be the subject of rigorous challenge by anybody who disagrees with them. I'm happy to take on what I have to take on, but I'm keen to hear your view on my reasons for caution, because I don't want the LSE to be producing a paper headed "A lost opportunity!" Maybe it will.
A. I think the LSE is the least of your worries. LORD JUSTICE LEVESON I might agree with that, too.
A. I do completely sympathise and understand where the Inquiry finds itself on this issue, but there is an incommensurability at the centre of this, which is: yes, there are questions of where the technical expertise lies and whether it lies within the scope of this Inquiry and the time it has. I completely appreciate that. But I would also suggest that there is a question here about whether we can sustain the claim that policy making in this area has been demonstrated to be subject to endemic conflict of interest, if politicians have been compromised in relation to individual merger decisions and potentially also compromised in relation to development of policy frameworks in this area. So it's a simple point, really, which is whether it is logically consistent to find that politicians are compromised, subject to these conflicts of interest, and at the same time not specify clearly to them some standards and objectives and simply to kick the ball back to them with a very wide discretion. I think that if I think there's certainly been evidence to suggest that there is this problem with politicians developing policy in this area and anything the Inquiry can do to help them and to narrow the options would be welcome. There is a potential other solution, which would be that an organisation, a commission, a civil society involving a commission specifically on media ownership rules to develop more policy in a transparent way over a reasonable period of time and to feed into the Communications Act process could be something that the Inquiry could recommend. You might take the view that that is risky and looks even more like long grass. I'd have to leave that to you. It could be something which is recommended. I completely understand the point that plucking figures from the air is not something that the Inquiry feels able to do. LORD JUSTICE LEVESON Yes. Well, the point was slightly wider. It's whether actually plucking figures from the air was something that the terms of reference required me to do. Anyway, we've debated it. MR JAY In terms of structures, though, Dr Tambini, you are recommending that these decisions are taken away from ministers and conferred instead to an independent regulatory body. That's something which is squarely within the terms of reference, and the reason for that, I think, is fairly apparent from what you've just told us.
A. The model there is Germany, the KEK, which is a specific body which just deals with media concentration and merger decisions in the media sector and has been seen to be relatively successful. It is an expert commission. Members of the Commission have security of tenure, they have a limited secretariat, and I think that model is worthy of examining. I know there's a range of opinion on whether ministers should remain involved in individual decisions on mergers. My view and the view of my co-authors is that they should not; they should be removed. LORD JUSTICE LEVESON Their contrary argument is that this is a question in respect of which they have to be held accountable.
A. It also relates to it's difficult to take different parts of this structure and analyse them individually. It depends. If you have a system of with clear, fixed limits and there's less discretion for this Commission, the accountability problem arguably goes away, whereas if you have for example, the co-ordinating committee for media reform is suggesting a very interesting model, which is a system of triggers and thresholds. So when you go above the 15 per cent trigger, in effect there is a menu of undertakings, and if you agree to those undertakings, that, in a sense, is a licence for bigness, that public interest obligations are applied to you. In that kind of system, you may want some kind of accountability, but even in that kind of system I wouldn't want I think we've seen quite dramatically the discretion exercised by ministers in merger decisions and where that gets us. I think that they should be removed from these decisions entirely. LORD JUSTICE LEVESON All right. MR JAY Thank you, Dr Tambini. Those are all the questions I have for you. LORD JUSTICE LEVESON I repeat my thanks, Dr Tambini. There's obviously, as I say, been an enormous amount of work done in these areas and it only underlines the complexity of the issues.
A. Thank you. MR JAY The next witness, please, is Professor Barnett. PROFESSOR STEVEN BARNETT (recalled) LORD JUSTICE LEVESON Professor Barnett, you also have given evidence before. Thank you very much indeed. Questions by MR JAY MR JAY Thank you. You're a professor at the University of Westminster in I'm just trying to remind myself. Professor of communications. I think you gave evidence on 7 December; is that right?
A. I did.
Q. Your paper, which starts at page 01560 it's tab 93 covers two important but related issues. The first is press regulation and secondly combating media concentration. We heard from Dr Tambini the importance of the second issue and how it perhaps bears on the first. Standing back from these questions, how much emphasis do you place on the second, and to what extent do you feel it's responsible for the problem that we've found ourselves in with the culture, practices and ethics of the press? LORD JUSTICE LEVESON And also, by all means, take advantage of the opportunity to comment on the exchange that you've just heard to such extent as you feel it necessary to do.
A. Thank you. I would like to take that opportunity. In answer to the question on the sort of chicken and egg question, as I tried to make clear in my evidence to Module 3, which I've tried to compress for the second part of Module 4, I think the concentration of ownership issue has been fundamental over the last 30 years in producing the kinds of problems and issues that have emerged over the last year. I deliberately go back 30 years and I gave the timelines I say in my Module 3 evidence. There's one sentence from the last paragraph of that Module 3 evidence which I'd just like to repeat, because I think it answers your question, which is: "The danger to democracy of an overly concentrated media is not simply in closing down the number of potential voices but in the undemocratic exercise of corporate power, which, if unchecked, can distort the democratic process by wielding too much influence over elected governments." So for me the first issue is the wielding of undemocratic power, corporate power, by organisations to whom governments have been in thrall, and one organisation in particular, which is News Corporation. I also outlined in my Module 3 evidence my own involvement, during the 1980s and early 1990s, in the Labour Party, where I saw at first hand how an opposition that was desperate to get back into power was falling over itself to try and find a way of accommodating what they perceived to be the most important route to power. And an awful lot of what has happened over the last year, I think, falls into that category of unaccountable corporate power. So that's a long answer to your question of which comes first. I'm not suggesting that had we had the existing structures of press self-regulation that would have been sufficient because dealing with the ownership issue would have solved everything, but I do think that they are coming at the issue from two different approaches and the ownership approach is as important, if not more important, than the bottom up. That's the top down approach. The press regulation the mechanics of press regulation, if you like, is the bottom up approach, but I would absolutely want to emphasise the importance of understanding where ownership fits into where we've got to today. Which brings me to the exchange that you had with Damian. I do not believe it is necessary at all to get into the nitty-gritty of numbers, caps, percentages, how many newspapers there ought to be, how many media organisations there ought to be. I absolutely think and I think this fits with the Inquiry's remit as it's laid down. Notions of plurality, notions of cross ownership are absolutely within the remit and I think it's perfectly okay, I would have thought, to be able to lay down high level principles, high level policy principles, and say: "This is what we want in a democracy. In a healthy, vibrant, dynamic democracy, this is the way Parliament ought to be taking this. These are the principles [I've laid out four or five which hopefully we can go into in a little bit more detail in terms of plurality] but it is up to you, Parliament, and you, the regulator, to decide precisely how you get to that position." So I don't believe personally that the Inquiry needs to go beyond the kind of high level statements that we've seen in, for example, the 2001 paper on media ownership under the Labour government or the 1995 Green Paper on media ownership from the then Conservative government. They're very good statements of high level principle, and for me, that will suffice. LORD JUSTICE LEVESON The problem that Dr Tambini might suggest is that that's called the long grass.
A. Well, if Parliament is so frightened of media ownership that it wants to kick it into the long grass, it will do that anyway. I don't believe that it's going to be persuaded by more detail rather than less detail. If anything, quite the opposite. I do believe that this is potentially, for all sorts of reasons, a transformative moment in British public life. LORD JUSTICE LEVESON I wish people would stop saying that, Professor.
A. But and it's a big "but" I mean, there are good political reasons for saying that, because it's a Coalition government, because, if you like, the big beasts are clearly, at the moment, lying low, but also because well, in the sense, there is less of a sense of press power at the moment than there has been for many, many years. Politicians feel that. Politicians feel that. And I think there is a greater sense now that it is possible for Parliament to legislate in the public interest without fear of a press backlash. I'm saying it's better than it was, not that it is absolute. LORD JUSTICE LEVESON Yes. You have to deal with the argument that it was always thus. You went back 30 years. You could have gone back 60 years. You could go back to the great media barons of the early part of the 20th century.
A. That is absolutely right, and in fact, in many ways they were more influential in terms of overall government policies, on foreign affairs and domestic issues. I think that's right. Ironically, they were probably less influential in terms of media policy. But that's a historical question, which is debatable. LORD JUSTICE LEVESON I have enough probably wouldn't solving that.
A. Yes. MR JAY May we, Professor Barnett, identify the high level principles? We're going to take your evidence out of order, if you don't mind, taking the leap that you provided us, started with plurality matters. Do we see those in paragraph 126 your statement, our page 01563, where you focus on six key changes to the current regime?
A. Well, the high level principle that's probably too grand a title for it. Paragraph 11?
Q. Mm-hm.
A. All I say essentially is: why does there need to be an intervention in terms of plurality? And the argument is: it goes beyond and I think this is quite important the notion of a multiplicity of voices. It's not just about dissent or competing voices. There are wider cultural issues involved in definitions of plurality. I've outlined those in paragraph 11, and I think it's important to remember again, going back to the notion of corporate power, it's not just about the number of the diversity of voices and the number of voices; it's also about the way in which powerful corporations will exploit their media outlets in cross promotion, and will use their power potentially to pressurise regulators to do the kinds of things they want to do. The example that's often given I've heard estimates that last year alone BSkyB sent ?1 million in legal fees in trying to rebut some of the regulatory enquiries that Ofcom were bringing against them, and that is one example of how corporate power unaccountable corporate power can be used to generate even greater magnitude, even greater power. LORD JUSTICE LEVESON This isn't just a press problem.
A. It's absolutely not. No, no, no, no. In fact, I would say on the contrary. I think if we're talking about plurality I'm not even making this a News Corp issue. The issue of BSkyB within the broadcasting market is huge. ?6.6 billion was its revenue last year. That is almost more than the whole of the BBC, ITV, Channel 4 and Channel 5 put together, and within the next couple of years, projections are that it will be more. That is an awful lot. This is without the fact that it's 39 per cent owned by News Corp, with their control of the national newspaper circulation. That is the kind of magnitude that I do not believe would be permitted in the United States and probably not in most other European countries. So you're absolutely right; it is not a press issue. It is a plurality issue, and one of the problems that Ofcom had in fact, the government had in deciding this public interest test, in the attempted takeover of News Corp and Sky, was in trying to find a way of saying: "We can't stop this on competition grounds because Brussels has already okayed it. We can only look at it on plurality grounds." And therefore Sky News became the bone of contention, and actually, for all sorts of reasons, Sky News, within that organisation, is quite small and is probably the best thing to have emerged out of BSkyB anyway. Sorry, that's a slight divergence, but I just wanted to emphasise the importance of saying plurality certainly goes beyond newspapers. Shall I come back to your paragraph 12?
Q. No. Can we stay on paragraph 11. I just want to understand the separate parts of it. The reference to embracing the wider cultural environments; can we be clear what you mean by that?
A. I think it's very important to think about where do ideas we're not just talking about political issues or political argument. It's the notion of ideas. How do ideas circulate? Where do they come from? Very often, particularly given the power of television, which is still very strong in this country, they come from powerful drama, they come from powerful situation comedies, they come from political satire. Those in turn will often reflect the corporate entity where they came from. Again, in my Module 3 evidence, I talked about the seminar a few years ago where someone who had done a lot of work for Disney talked about the Disney values. The way in which you pitch to Disney is very much contingent on what you know Disney is expecting, which is around family values and something that's sort of nice and cuddly, whereas and again, in my Module 3 evidence I talked about when Rupert Murdoch started the Fox network not Fox News, but the Fox network in America he introduced a couple of programmes that were significantly more graphic and more violent than American television watchers had been used to before, and one of his biographers, William Shawcross, said in many ways he was doing for American television what the Sun had done for British newspaper readers in the UK. That, again, is an example one was a current affairs programme, one was a reality type programme of programmes which emanated from a particular corporate ethic or philosophy. So I do think it's important that we bear in mind the whether it's the editorial content of newspapers where news stories come from, whether it's the commissioning strategies in drama or comedy, that ultimately many of these things will come from a kind of a corporate ethic.
Q. Are you proposing then an amendment to the statute which will not just look at plurality of views, which is the test in the context of newspaper mergers is there sufficient plurality of views? but we would also be considering much sort of softer concepts which relate to the wider cultural environment that you are discussing here? Is that the way you envisage it?
A. Well, what I envisage is sweeping away the Enterprise Act, that provision, sweeping away that provision of the Communications Act, because, as I've explained here, they were last-minute fixes. I think it's interesting that we get into quite for obvious reasons, quite legalistic discussion about the wording of these statutes which were, with all due respect to the Parliamentarians at the time, actually drafted very, very quickly, in a matter of a few days, in order to ensure that the Coms Act got through Parliament. That's the history of it. And yet here we are, ten years later, going through it word by word saying, "Which bit shall we keep? Which bit shall we The answer is and here, again, we come to my view of where the Inquiry might best go on plurality, is to say: this is not fit for purpose any more. We don't want a last-minute amendment to one Act based on another Act to do the job of plurality. We want Parliament to think about what it wants, what it means by plurality, and start with the new Coms Act, which there'll be a White Paper next year, by saying, "This is what we want. Let's sweep away what we have so far and legislate accordingly." So personally, I would not want to make any amendments to the Enterprise Act. I would want to get rid of it and start again.
Q. Yes, but the new statute then which replaces the Communications Act and the Enterprise Act
A. What should it say?
Q. what should it say? We would need a conception of plurality then which wasn't limited to plurality of views in newspapers but went much wider.
A. Yes.
Q. That would be the starting point?
A. That would be the starting point. In fact, there is a very good paragraph in the DCMS consultation on media ownership rules in 2001, which, for me, encapsulates where we come from, where it says different media companies produce different styles of programming, et cetera. "A plurality of approaches adds to the breadth and richness of our cultural experience." I think I would want to look at something which talks about a plurality of approaches, a plurality of voices but also encapsulates the idea of minimising corporate power in too few hands. So it wouldn't just necessarily be limited to news or voices of dissent. It would encapsulate those concepts of cultural experience and power. As I say, as a high level principle please don't ask me to give you a draft of a statute, because
Q. No, no.
A. But I think it's possible to do, and if you if you go back to where Ofcom gets its authority from, there is a high level principle in the Coms Act which defines what Ofcom is, which is to promote the interests of consumers and citizens. It's very wide-ranging, very broad. Some of us had to fight very hard to get the word "citizens" in there in the first place. But now Ofcom draws on that for its authority in a huge amount of what it does, certainly in broadcasting and telecoms, and I think it's possible to start with something equally wide-ranging on ownership and plurality.
Q. Thank you. May we move forward now to paragraph 12, where you identify your proposed six key changes to the current regime. Can I ask you, first of all, to explain the first one: "Discretion for initiating an inquiry should be shared by both the Secretary of State and by Ofcom."
A. Yes. This was a recommendation I advised the House of Lords Select Committee on media ownership in 2008 and this was one of the recommendations that came out of that report, which is: quite simply at the moment, it is at the solely at the discretion of the Secretary of State whether there is a public interest case at all. So had and in fact, on the most recent case, had Dr Cable felt that there wasn't a case to answer, as I believe his initial response was, he would simply have said that merger can go through, and Ofcom would have had no say, nor would the Competition Commission. So rather than remove it entirely from the Secretary of State, I think it's important to allow some political discretion. It could be jointly held so that if the regulator feels there is a case, it too can unilaterally initiate a public interest inquiry. LORD JUSTICE LEVESON Unilaterally initiate it or somewhere between the two would be to say that if Ofcom were concerned, it could publicly invite the Secretary of State to do so, and then if the Secretary of State didn't want to, there would have to be explained reasons. I'm not promoting it; I'm merely asking you the range.
A. Yes, that would be an option, and I think Parliament would probably prefer that option. I still would worry about the way in which that discretion might be used, given, as we've heard so many times, the reluctance of politicians to take on media companies. LORD JUSTICE LEVESON I understand that, but one of the principles which it seems to me emerges from Module 3 is that a number of the concerns that have been articulated very forcibly can be addressed, at least in large part if not entirely, by rather more openness and transparency, as indeed has started.
A. I think that is absolutely right, and it was very interesting when I went with the Lords delegation to Washington and we talked to I think they're called the Centre for Public Integrity about the way in which it works in America and any kind of transactions, lobbying, conversations that are done between members of congress and lobbyists or people acting on their behalf has to be in the public domain. Everything has to be recorded. Every conversation, every phone call, every meeting is logged. And there are very strict sanctions if these are not followed. I think members of the public, let alone the rest of us who have been involved in this for some time, were quite stunned when that stream of text messages emerged through giving us an insight into what was going on during that sort of merger process. I think you're absolutely right. I think if there was some provision made and it would have to be very strictly enforced and scrutinised, and I think there would have to be a shift in the culture, which is clearly what has happened in America, to ensure that it is properly observed. If it was properly observed, I think that would go a long way to solving some of these issues. LORD JUSTICE LEVESON Yes, it couldn't be sidestepped by saying a mobile phone conversation is okay.
A. Precisely, absolutely, and participants would have to know that there would be severe sanctions if any of this turned out to have been done in secret. MR JAY The second principle: "Greater flexibility is required in the circumstances which might trigger such an investigation, including organic growth to a point which is deemed to threaten diversity of voice." I think you're not favouring here the recommendation which Ofcom proposes, namely that there should be periodical reviews after four or five years. Instead, discretionary reviews by Ofcom if certain thresholds are met. Have I correctly understood you?
A. Yes. I'm not yes, I think that's right. I was slightly worried by the Ofcom every four or five years is a long gap in between periodic reviews, and I think there would need to be more of a watching brief. I wouldn't mind a combination of the two. A review every, say, three years, combined with a watching brief that where there were clear potential triggers, like exceeding what I would call a soft cap in revenues. I think I say further on that I'm no, I don't say it here; I say it somewhere else. I'm actually quite keen on the Claire Enders idea of revenue caps, but not hard caps so that as soon as you cross a threshold, that's it, you're caught. It then triggers, as with the CCMR, the media reform recommendations it triggers potential obligations and responsibilities. I think it's possible to have a combination of the two: periodic reviews and triggers which are, if you like, soft triggers. So there are warnings, there are alerts.
Q. You deal with this in paragraph 14. You do mention
A. I do.
Q. the Enders proposal of caps, but you're not regarding those as strict limits; you're suggesting if the cap is overtopped, then there must be a review and the review will then take into account the statutory criteria, which we'll see in our new Communications Act.
A. Absolutely right, yes.
Q. Which isn't quite the Enders proposal, I think, is if you overtop the cap, you're then divested to bring you to a point just below the cap. From my understanding
A. I think that's right, although I think Claire slightly softened her position in evidence. But that's the idea as written and I would go I wouldn't go quite as far as I think it needs to be a flexible system because of the reasons around sustainability and the economic problems that we've heard so much about, which are real.
Q. Can I ask I, please, about the sixth of the principles, because the others I think are clear enough: "The final decisions on divestments, conditions and mitigations when contemplating greater media consolidation should not be left to government ministers. Authority should be delegated to Ofcom with appropriate accountability measures." So
A. Sorry, which paragraph are we on?
Q. Sorry, it's the fifth bullet point. I'm terribly sorry.
A. Okay.
Q. The bottom of this page.
A. Yes.
Q. So you accord less weight to the notion that these decisions, owing to their importance, should be left in the last analysis to those with democratic accountability?
A. I do, with some reluctance. In fact, the Lords Select Committee in 2008 decided for that very reason reasons of democratic accountability to leave the final decision in the hands of the relevant minister. I think we've seen what problems occur when you do that, and I think at one point Jeremy Hunt himself said he would be quite happy for this to be taken away from him and be taken by someone else. So I think there is a given the amount of pressure that ministers/governments feel to try and accommodate the wishes of media organisations, and the importance of keeping media organisations on side in terms of electability, it seems to me we've now reached a point where that authority needs to be delegated to an appropriate regulator, which would obviously be Ofcom. There then needs to be some kind of accountability mechanism, and that's why I'm suggesting something like a mandatory meeting of the CMS Select Committee, a bit as happens now with the Channel 4 and the BBC annual reports. They both have to be presented to the Culture, Media and Sport Select Committee, and I think something like that, to ensure that there is a measure of accountability, would be appropriate.
Q. Yes. Your sixth point, on the next page, a more explicit recognition of why pluralism is integral to democracy. Are you expecting there that the statute would reflect these policy objectives?
A. Absolutely. And again, this comes back to the rewriting of the statute, and I've indicated here how both the Office of Fair Trading and again, the House of Lords Select Committee both separately recommended that some kind of reference to the importance of news-gathering could and should be written onto the face of an Act. Again, I think we've heard over the last few months that for all the proliferation of online and blogs and new media, the pressure on original journalism on actually going out, finding facts accountability journalism, investigative journalism is the pressure is more than it's ever been before, and while I previously you know, I emphasised the wider culture environment, I think it would be also be important to have a recognition of the importance of original news-gathering.
Q. The statute merely says the importance of journalism in the public interest.
A. I think that's
Q. That would capture the
A. Absolutely, absolutely. And, of course, there could be further guidance issued by the relevant departments after that, but you're absolutely right.
Q. Can we be clear on your underlying philosophy: the nexus between concentration of economic power and lack of accountability and a deleterious impact on the democratic process in other words, influence on politicians that is all clearly understood, but are you saying as well that there is a similar sort of nexus between concentration of economic power and unethical practices, or do unethical practices flow from some other systemic or underlying problem?
A. No, I think that there is a direct connection. There is this notion of and I think we've seen some evidence of it over the last few months almost a sense of untouchability by virtue of having that economic power. As I said, it's an economic power that translates itself in terms of relationship with the regulator, with employees we've heard evidence of that, I think and with governments. But I think there is a direct relationship to the culture and practices and ethics, in the sense that if you think you can get away with things, you're more likely to try them.
Q. Thank you. That's clear. Paragraph 13. I think you're suggesting here a series of behavioural remedies which may be preferred in the right circumstances to divestment or fire sales, as you describe them.
A. Yes, that's exactly
Q. Is that a fair summary?
A. That's exactly right, yes. I think the notion of divestment is it would be perverse, in an environment where we want to encourage more news outlets, to say that essentially someone an organisation that has successfully is so successful that it's growing should actually lose one of its news outlets would seem to me to be perverse, but we need to understand the rationale behind it and then mitigate the problems that emerge. That's not to say that there shouldn't, in extremis, be divestment as a sort of nuclear option. If we reach a situation where one media owner has, let's say, approaching 50 per cent of the national newspaper market, that would clearly be a realistic option. But before we get to that point, I think there are clear obligations that can be imposed in mitigation.
Q. I've been asked to raise this with you: how do you think these behavioural remedies can be effectively implemented and enforced?
A. Well, I think this comes back, I suppose, to the whole kind of Module 1 issue about the mechanics of press regulation and how you implement them. I think I said in the first bit of my evidence that I was on the steering committee of the Media Standards Trust for its report and I think that proposal for a backstop independent auditor and self-regulatory bodies seems to me to provide the ideal framework for being able to work through some of these obligations. You say: you have to belong to one of these bodies, it will be enforced through some kind of backstop statute or auditor or regulator, and that regulator will ensure that the following obligations are observed. LORD JUSTICE LEVESON You don't need to go quite that far for this, because if you are seeking participation or a willingness to undertake the activities which you set out in paragraph 13, one of the ways you could simply do it is by saying: well, if the authority Ofcom or whoever take the view that plurality is being affected, it could instigate an investigation which could be resolved by the acceptance of undertakings in lieu. In other words, we're not specifically requiring or mandating by law that you do A, B, C, D, but if you want to stop us doing something which you certainly don't want us to do, then you have to show us how you're prepared to make use of your influence and power in the public good.
A. Yes. I think that's right at the outset. There would then be the ongoing issue of continuing enforcement. LORD JUSTICE LEVESON Oh yes.
A. So you can use the stick, saying, "We're not going to let you carry on doing this or owning these media outlets unless you commit to doing X, Y and Z." There is then a commitment to do X, Y and Z, which, a year later, is breached or the investment stops or they leave the self-regulatory body or whatever. This was precisely the problem with the UILs with News Corp and Sky, because an awful lot of us who were asked to comment in the consultation simply did not trust News Corp to stick by the commitments that they were making in guaranteeing Sky's independence. LORD JUSTICE LEVESON But the answer to that is some form of audit, annually or whatever.
A. Yes. Yes, undertaken by the regulator and with a clear threat of sanctions which is implementable if there is a breach. LORD JUSTICE LEVESON And that's nothing to do with restricting free speech at all.
A. It's the process. That's absolutely right. It comes back to as I often do, it comes back to Baroness O'Neill's distinction between corporate speech and individual free speech, between process and content. So you don't touch the content, but you do legislate on the process. MR JAY Shall we break for lunch? LORD JUSTICE LEVESON Yes, we will break, but before I break, it's obvious that you've given considerable thought to what a new statutory provision would look like, and doubtless through the various committees that you've advised, thought was given to what it might say. If you have any views as to that and to the language that might be used that you want to share with the Inquiry, I'd be very interested to see it. I'm not saying any commitment, but you've articulated, in language which is clear but not confined, the precision that would be necessary for legislation. I'm not suggesting that you now embark upon three months' work, but if you do have any ideas on that, I would be interested to see it.
A. I will work on that. LORD JUSTICE LEVESON Thank you. Right, 2 o'clock. (1.01 pm)


Gave a statement at the hearing on Wednesday, July 18, 2012 (AM) ; and submitted 3 pieces of evidence


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