Dr Damian Carney proposes the setting up of a new regulatory body for the press providing strong remedies for complainants, better internal controls on ethics and complaints – and enough independence from government and industry to appease the general public

In the first edition of The Phone Hacking Scandal, I put forward a number of arguments as to why I believe a form of statutory regulation of the printed media is the only way forward to deal with the issues which have been raised by the Leveson Inquiry, and identified some features which I felt the new statutory based regulator should have.

In this new chapter [to be published October 2012], I want to study some of the proposals which have been made at the inquiry as to the form that new regulation or self-regulation might take, examining what aspects of these proposals Lord Justice Leveson is likely to endorse.

I write at a time when the Fourth Module of the Inquiry: Submissions on the Future of Press Regulation has already begun, and I do so knowing that by the time the book is published, the inquiry will have completed hearing the evidence and may have made recommendations.

Thus, in attempting to predict Lord Justice Leveson’s recommendations, it may seem that I am trying to be a Mystic Meg with all the chances of proving fallible. However, I believe this exercise is necessary as since the first edition several important developments have occurred which may have an important bearing upon what Leveson finally proposes.

In asking for submissions to the Fourth Module, Lord Justice Leveson identified five criteria by which a new regulatory regime would be assessed: effectiveness; fairness and objectivity of standards; independence and transparency of enforcement and compliance; powers and remedies of the regulator; and costs (Leveson 2012). Each of the models which follow will be assessed by these criteria.

The Decision to End the PCC

The cacophony of criticism levelled at the PCC in the aftermath of the phone hacking scandal, and the initial stages of the Leveson Inquiry, led to the acceptance by those associated with the PCC (its chairman Lord Hunt, and PressBof – the industry funding body) that it needed to be replaced.

Rumblings to this effect began to be heard in December 2011, but it was officially announced on 9 March 2012 that the PCC had agreed to undergo a transitional stage whereby its assets would be transferred to a new regulator (Press Complaints Commission 2012).

This was a sensible move as it would enable any new regulator to start afresh without any of baggage associated with the PCC. Two very similar self-regulatory models were proposed by Lord Hunt, and Lord Black of the PressBof.

Both proposals envisaged a body which would continue to deal with complaints about breaches of the regulator’s code, but would also have a standards arm (called Investigations and Compliance Panel by Lord Black) which would have the power to investigate:

• ‘significant or systemic breaches’ of codes or ethical standards;
• where serious breaches of criminal or civil law has occurred and though resolved by court, the regulator believes that an investigation would be beneficial because of the wider issues involved;
• where there is a significant and substantive issue arising from a single issue, or a long-term pattern of breaches of the code (Black: para 15; Hunt 2012: paras 88-89).

In Lord Black’s version, the standards arm would have the power to impose sanctions (up to £1,000,000 or 1 per cent of turnover) (Black 2012: para 55), whilst the complaints arm would have a ladder of sanctions (informal resolution, published apologies, formal reprimand and then adjudication) (ibid: para 98).

Whilst Lord Hunt’s model would focus upon the complaints arm largely acting as a form of brokered negotiation (Hunt 2012: para 104), the Black model emphasises the role of the new regulator as a mediator (Black 2012: para 35).

However, in both models recourse to the new regulator would only be available after the complainant had used the internal complaints procedure that each publishing group or publication would be required to set up as a result of the contract which they would sign with the regulator (ibid: para 97; Hunt 2012: para 10).

The publishers would also under this contract be required to give the new regulator an annual report which, inter alia, explained how complaints were dealt with and how ethics were encouraged in the publication (Hunt 2012: para 78; Black 2012: para 22).

Incentives to Join New Contractual Schemes

This contractual underpinning is seen as a mechanism of ensuring that the sanctions imposed can be strong and coercive, and so not necessitate any statutory underpinnings or interference. However, as they are voluntary, both these models are predicated on a series of incentives which would encourage not only established print publications from joining the new self-regulatory schemes, but would incentivise publications on new media platforms to sign up to the scheme.

A common feature to both schemes is some form of kitemarking, or badge, which indicates adherence to the regulator’s code which can be removed should a publication be guilty of systematic breaches (Hunt 2012: para 53; Black 2012: para 24). Lord Hunt suggests adopting the Irish position and enabling those who adhere to the code to have some defences or reduced damages if they have to defend defamation actions (Hunt: paras 47-49).

Lord Black’s proposal suggests that press cards would only be given to those who signed up to the regulatory system, and only members of the regulatory regime would be able to have access to Press Association copy (Black 2012: para 65). In addition, he suggested looking at ways in which advertisers could support the system, perhaps through refusing to work with publications outside of the system (ibid: para 69).

Black proposed that the contract between publisher and regulator would be ‘long-term’ but then suggested this meant initially for five years and then on a rolling contract (ibid: para 63). Publishers who sought to leave the regulatory regime would have to pay costs equivalent to the revenues the regulatory would have received from them in the remainder of the contract (ibid: para 12).

Do these Self-Regulatory Proposals Secure Independence of the New Regulator and Public Confidence in the System?

In both models all the component parts of the new regulator, bar the Code Committee (which Lord Hunt would have outside of the new regulator’s control) (Hunt 2012: para 59), would have a majority of laypersons which would emphasise the independence of the new regulator (ibid: para 58; Black 2012: para 10).

In Lord Black’s proposal for example, the co-ordinating body the Trust Board would have four lay persons (including the chair) and three press representatives; the Complaints Committee would have only five editors but eight laypersons. The Investigations Panel, which would be brought together on an ad hoc basis from a panel of experts, would have only one press representative (not a serving editor but with editorial experience) but two lay persons (ibid: para 18).

Laypersons’ appointments and that of the Investigations Panel, and any Independent Assessor appointed to hear appeals from the Complaints Committee, would be appointed by the Trust Board, not the industry (ibid: para 20). Lord Hunt’s model would have a small board which co-ordinates the other limbs of the regulator being formed with a majority of laypeople, and a minority of press representatives who would be non-serving editors (Hunt 2012: para 28).

The chair would be titled an Ombudsman and he would be the chief arbiter of standards (ibid: para 67). The complaints arm in Hunt’s model would have the same make-up as Lord Black’s, or could be smaller with seven laypersons and four press representatives, although Lord Hunt seems to favour membership which is influenced by the requirement to be representative of the country in much the same way as the Public Appointments Commissioner is required to take this into account (ibid: paras 31 and 69).

Both proposals also suggest that press representation should be more representative, and not dominated by the national press as the current PCC is. Whilst both proposals accept a need for the presence of laypersons on the Code Committee, they would be in the minority, which they justify on the basis that only editors would have the knowledge of what is happening in the field to know whether the code needs amending or not (ibid: para 58; Black 2012: para 80).

Despite both being called ‘drafts’ and with some detail needing to be added, they are clearly very well-worked out and there have been grumblings that they are attempts by the press (although Lord Hunt tries to distance himself by saying this is the PCC view) to give Lord Justice Leveson a fait accompli.

Critics draw comparison to the establishment of the PCC whilst the Calcutt Inquiry was ongoing as being evidence of the press’s willingness to do the ‘absolute minimum reform needed to stifle opposition’ (Frost 2012: para 14). In fairness to these proposals, they do suggest widespread changes to both the functions and make-up of the body, but one could argue, given the crisis in confidence in journalism that the phone hacking scandal has caused, minor reforms would simply have been ignored by Leveson and the government.

However, Lord Black has argued that his proposal is viewed as credible, and therefore likely to be effective, because it was formulated within the industry (Black 2012: para 8). But in being so parochial (with no public consultation) (ibid: para 9) and without any input from journalist organisations such as the National Union of Journalists, and some publications claiming to have not been consulted (South West Wales Media 2012) the origins of the proposals may prove to be the ultimate reason why neither is accepted.

Contractual Basis of New Self regulators

Whilst the contractual basis of the new proposed self regulators would seem to give the regulators greater powers than the existing PCC, and be flexible enough to deal with new media platforms, thus complying with the requirement in para 1.1.d of Leveson’s Draft Criteria for a Regulatory Solution that it is ‘sufficiently flexible to work for future markets and technology’, it is not without flaws. The initial contract is for five years, and thereafter it would be a rolling ‘five-year’ contract.

These contracts are not long enough. They give publishers relatively regular opportunities of withdrawal which may occur if the scheme does not meet with the individual publisher’s liking (e.g. they may be subject to adverse findings by either the Complaints or Standards arms) (Media Standards Trust 2012: 44). Once the scheme lacks all major publishers it begins to lose its credibility with the public, and if there are not adequate financial or other incentives to join the scheme, it is unlikely that newer online news outlets will join.

Many of the examples that Lord Hunt used to support his adherence to voluntary contractual arrangements were taken from the sporting world (e.g. the Premier League, Jockey Club and England and Wales Cricket Board) where if a team or individual is outside of the competition (either through sanction or withdrawal) they face a clear financial penalty as they cannot continue to compete (ibid: 44-46). In media regulation there are no such similar incentives, if the newspaper does not want to play by the rules of the self-regulator it can still continue in business.

Concluding Remarks on the Proposed Self-Regulatory Models

In terms of the Leveson’s criteria, the proposals fall down badly on the ‘fairness and objectivity of standards’ criteria which requires the setting of standards to be ‘sufficiently independent of media interests, in order to command public respect.’(Leveson 2012: para 2).

In both proposals the Code Committee is dominated by current editors, and in Lord Hunt’s proposals the Code Committee could even be located outside of the new regulator (i.e. be determined and manned by the Press). This is a basic flaw in the design, and questions need to be asked as to why, when other parts of the proposed regulators have a layman majority the code (which is to be enforced) does not.

The code is the crucial element of the regulator scheme. It is this which the complaints arm adjudicates on and the standards arm enforces, and in the draft criteria it is clear that some of the interests which much be considered may run counter to what publishers would want on a self-interested basis (i.e. the need to consider ‘the rule of law, personal privacy and other private rights’ (ibid: para 1.1.b).

The general public’s concern is more likely to be sated, if they are convinced that the code is being developed with the ‘public interest’ determined by a body much more diverse than that which currently exists, and in which editors are in the minority, otherwise the fear may be that press interests rather than public interests will influence the content of the code.

With the exception of the Code Committee the proposals do guarantee a high degree of independence both from media interests, and the state. There is a total absence of state input.  Appointments to the new regulator have being taken out of the hand of the industry and given to the Trust Board/board of the new regulator, and the influence of the industry funding body is greatly minimised. There do remain questions as to whether the funding of the new regulators would be adequate enough.

The Statutory Backdrop Model

There is often an over-simplistic presentation of a black and white choice between either statutory regulation or self-regulation, when in reality there are a range of different co-regulatory and statutory forms which can give varying degrees of choice those designing self-regulatory systems.

Most professions and key industries, with the exception of the printed media, fit into one of these co-regulatory arrangements. The term co-regulation means that whilst the profession, or industry, has a degree of control over their own affairs, there is a state body which oversees the self-regulation to ensure it meets certain statutory obligations. The case of the Legal Services Board illustrates this perfectly (see Legal Services Act 2007).

Several proposals have been put forward to the inquiry recommending the adoption of such a model. The Media Standards Authority (MSA), put forward by the Reuters Roundtable on Media Regulation, and drafted by Hugh Tomlinson QC, has many similarities to the self-regulatory approaches described in the previous section.

Although it would be a creature of statute whose main aims would be to promote and protect public interest journalism, and to protect privacy and reputational rights of individual providing them with ‘swift and cost effective resolution of disputes’ and providing the public with accurate information (Reuters 2012: para 5).

With a statutory guarantee of independence from both the press and the government, the scheme would be voluntary and be based on five-year rolling contracts (ibid: paras 5-8, 15) and internal complaints system within each publication (ibid: para 31) with each publication producing annual reports about compliance (ibid: para 43).

Publications would be encouraged to join by incentives, which would centre on providing a cheaper dispute resolution method than the courts. There would be initially compulsory mediation but if complainants were not satisfied with this, they could seek a remedy from a Dispute Resolution Tribunal (ibid: paras 23-25).

By point of contrast, under the Media Standards Trust’s proposal the print industry would be left to create its own self-regulator(s) (with the possibility of different bodies being set up for national and regional newspapers and magazines), with obligations to join imposed on those that did not meet to the definition of ‘small company’ in the Company Act 2006 (Media Standards Trust 2012: 73-75).

Small publishers and bloggers could voluntarily join a self-regulatory scheme (ibid: 75). Membership, by way of contract and the self-regulatory regime, would be left largely to the members to define but would have to satisfy a Backstop Independent Auditor (a statutory body funded by a levy on large news organisations) that certain criteria are met. These criteria would be to:

• provide the public with an independent forum for resolving complaints about member organisations;
• provide meaningful, proportionate and timely redress to the public, particularly with regard to inaccuracy, unfairness, and unjustified privacy intrusion;
• protect the freedom of journalists to report in the public interest (ibid: 79).

If the Auditor is not satisfied that these criteria have been met then the self-regulator can be struck off. This would force the media organisations to establish a new self-regulator, or join another existing one, but would not prevent the publishers from continuing to publish (ibid: p83), but would also ensure that, whilst the system of complaints was primarily self-regulated, it would be difficult for it to operate in a way which disregard the wider public interest as it would be constantly monitored.

The Backstop Independent Auditor would have the power to fine media companies which do not meet the small company criteria and have not joined a self-regulator (ibid: 81), and would ensure that the self-regulators are independent, but would not be a ‘court of appeal’ like the Legal Ombudsman (ibid: 89).

Need to Establish Internal Complaints and Compliance Systems

As well as membership of a self-regulatory scheme, the larger media companies would have to establish internal complaints and compliance systems (ibid: 72) which would create a paper trail, particularly in cases where privacy was invaded (ibid: 77).

Again the complaints function previously performed by the PCC is expected to continue in this proposal, with the Media Standards Trust also recommending that where there is evidence of malpractice the media organ should be required to pay the costs of investigations if more than three investigations are launched against it in a year on a ‘polluters pays principle’ (ibid: 79-80).

This proposal wants to minimise the amount of state interference/control of the printed media, and concentrates its efforts on a limited number of big players which it feels are most guilty or most likely to abuse the power that freedom of the press gives them. In the process the ‘light touch’ regulation which it is calling for seems too limited in the constraints it places upon the media in setting up the self-regulator.

True, the current Hunt and Black proposals may dispel such concerns but even the presence of the auditor as currently envisaged in this proposal would not stop future watering down of the current media orientated proposals. The lack of restrictions on the number of media representatives on the different self-regulatory organs raises questions about how independent the self-regulatory organs would be of ‘media interests’ (Leveson 2012: para 3.2).

It may be that the auditor would not authorise any self-regulator which did not have a majority of lay people, but the proposal would be strengthened if the large media organisations had to create self-regulatory organs that had certain minimum features.

This might include that all components of the self-regulator had a lay majority, that it be led by a lay chairman, and that journalist organisations such as the NUJ needed to be represented. It might also require that certain remedies are given by the self-regulator, e.g. right of reply or requirement that adverse adjudication be given as strong a prominence as the original article.

Another criticism of the Media Standards Trust proposals is that they seem to promote the creation of several self-regulatory organisations. The trust justifies this on the grounds that with new technology and new platforms there will be less cohesion between news providers, and forcing them all into ‘one tent’ would not necessarily work, although this would seem to fall foul of the need for ‘universal application’ in para 1.1.d of the Draft Criteria (Leveson 2012).

Allowing new self-regulators to be created to deal with technological developments would, they argue, be easier under this type of proposal, whilst fears that multiple self-regulators would create conflicting standards would be addressed by the Backstop Independent Auditor setting minimum standards (Media Standards Trust 2012: 8). A plethora of self-regulators creates several problems.

Whilst the auditor might be able to keep a minimum standard, there may be some self-regulators that wish to keep to the basic minimum laid down by the auditor and others which are looking for more of a gold standard. The likelihood is that if media organs are free to choose between the self-regulators then those organs most likely to engage in unethical conduct are going to join the regulatory regime which will impose the least burdens upon them.

It may be that the Auditor would restrict self-regulators to one per specific sector of media (e.g. having one self-regulator for newspapers, one for magazines, one for online sources and so on), but there is nothing to stop multiple self-regulators. The proposals also runs counter to arguments which have been put forward to create a multimedia regulator to accommodate the increasing convergence in media output.

Defamation Reform

Running in parallel with the Leveson Inquiry has been parliamentary consideration of major reforms to the law of defamation. The current Defamation Bill 2012, does much to recalibrate the existing law of libel to improve the position of defendants such as media organisations, but fails to address one of the major concerns that has arisen in relation to the existing defamation proceedings – namely costs and length of proceedings.

Whilst s44 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 provides the Lord Chancellor with powers to limit the maximum charged in Conditional Fees Arrangements and with strong indications that this will be applied in libel cases, procedural reform has been neglected and yet needs to be addressed if the overall costs are to be reduced to reasonable levels.

The failure of the Defamation Bill to address these issues has meant that several respondents to the inquiry have proposed creating dispute resolution schemes for defamation claims within the new media regulator, and even Lord Black’s proposal leaves open the option of adding an ‘arbitral’ arm to deal with libel (or potentially privacy issues) (Black 2012: para 36) which suggests that the industry suspect some major procedural reform of defamation is only a matter of time in coming.

The Alternative Libel Project, which is a collaboration of English PEN (‘the writers union’) and Index on Censorship, have made this the central aspect of their contribution to the inquiry. Although not suggesting a particular model, the project identifies three options which could help reduce the number of cases going to court, and the costs associated with concluding these claims. The project identifies a series of options which a new regulator could employ to resolve defamation claims:

• a voluntary arbitration service;
• a voluntary mediation service;
• a voluntary adjudication service;
• plus some form of Early Neutral Evaluation service (Index on Censorship/English PEN 2012: para 1.1 to 1.5).

It is noticeable that the proposals allow parties to opt to use the process rather than making it mandatory, which is justified on the grounds that the only way mandatory usage could be ensured would require state intervention which both organisations are opposed to (ibid: para 1.10-11). There are no incentives (other than perhaps the implicit cheapness of these alternatives) which are given to parties to use these mechanisms, but if parties chose to use the adjudication service and then one of them challenges that decision there are possible costs order which could be imposed on the challenger (ibid: para 1.11).

Whilst the project highlights how the proposal is effective in that it offers a number of ‘low cost options for those genuinely interested in resolving their dispute’ (ibid: 1.12, 2.3), it does recognise that extremely wealthy people may bypass the system (ibid, 1.13) and go straight to court resulting, unless otherwise dealt with by other statutory reforms, in high litigation costs in the individual case.

Others are less worried about statutory intervention. The Early Resolution CIC, headed by Sir Charles Gray (a retired High Court judge), recommended creating a statutory backed mandatory ADR process (Early Resolution: para 4.3, 6.2). Based on an existing scheme that Early Resolution started in 2011 (ibid: para 1.1, 7.1) that provides for adjudication on the issues by a member of a panel of media law specialists, assisted in some cases by two lay assessors, (ibid: para 7.1) the statutory scheme would be automatic, and any claim commenced in the High Court without using the system would automatically be stayed and referred to the fast-track mandatory adjudication process (ibid: para 7.3).

By doing so all the costs associated with the legal proceedings would be reduced, and the only cost would be the payment of the arbitrator(s) which in the region of £3,500 (ibid, 1.13) is significantly less than the average costs of defamation actions, and these costs the publishers would be encouraged to pay (ibid: para 7.5).

The dangers of publishers facing ‘vexatious or frivolous claims’ could be dealt with by defendants being able to request that the adjudicator require the claimant to provide security for costs or pay for all or part of the proceedings (ibid: para 7.6).

The great virtue of this system is that it provides a cheap means of resolving disputes and places no burden on the state (indeed, relieves the state of the costs of hearing most libel cases), reduces dramatically the costs to media publishers of having to defend such claims, and provides no barrier of access to justice to bone fides complainants. It clearly meets the draft criteria’s criteria for costs (Leveson: para 4) but if it is to work it needs to provide credible remedies which are at least on par with remedies currently awarded by the High Court including quantum of damages.

The ADR-type scheme suggested by both of these proposals is to be preferred to the over-legalistic suggestion such as Reuters’ Dispute Resolution Tribunal which would call for the creation of a full-blown adversarial tribunal which, whilst possibly cheaper than court proceedings, would still be substantially more costly than the ADR alternatives.

It is true that the Reuters’ scheme only permits use of the tribunal when mediation proves unsuccessful, and any form of adjudication has the benefit of helping to establish precedents and guidance, but adoption of adversarial approaches to these issues are costly and unnecessary. If the complainant is unsatisfied with the compulsory mediation he always has the remedy of seeking review of the decision by a court.

Predicting Leveson

Whilst a number of different schemes have been put forward to the inquiry, there are certain features on which a large degree of consensus is emerging. The new body has to be more separated from the press than the PCC and seen to be more independent, and many contributors believe the way to do this is by having a majority of non-press members on the constituent parts.

There is general consensus that appointments must be by an independent body (which may include the new regulator itself) rather than government. Publications should be required as part of the new regulatory regime to establish more robust internal complaints mechanisms, with the role of the new regulator being only to hear those complaints that the internal mechanisms cannot deal with.

This is very important as it also provides a means of reducing the costs of the new regulator by making use of it a ‘last resort,’ whilst the calls for annual reports and the identification of an employee of the publication as having responsibility for dealing with complaints/ensuring compliance that normally accompany such proposals, ensures the transparency which the draft criteria demands.

Identifying a responsible person for a publication or publishing group’s ethics gives that individual an incentive to ensure that the code is complied with within their organisation. There is some consensus that the new regulator must have both a complaints and a standards compliance role, although much variation exists as to the former.

There are other areas of much disagreement. The debate as to whether the new scheme should be based on statute or left to the publications to self-regulate is hotly contested. However, given that many of the high profile statutory scheme proposals are very light touch, it seems unlikely that Lord Justice Leveson would recommend a statutory body, funded by the government, in which the government would have any direct input in its day to day running.

Fears of the press that any statutory underpinnings or recognition of the new regulator would lead to a slippery slope whereby more and more statutory control was imposed, seems to be scaremongering of the worst kind. Statute has created numerous bodies and offices where the government of the day has been prevented from intervention once they have been set up and operated.

The emphasis in proposals on an independent appointments system, highlight a broad consensus that the government should not be involved in the appointments of the new regulator; and most of the funding schemes which have been suggested indicate that no state subsidy is desirable. Whilst this might be desirable, it may not be practical.

The proposals looked at here stress that a new robust regulatory system with greater powers to investigate and control standards can be funded by relatively minimum levies on media companies (for example, the Media Standards Trust suggest a levy of 0.05 per cent of revenues of the large companies in its scheme (Media Standards Trust 2012: 91), or media companies paying for investigations against them (Black 2012: para 82).

The argument that this would, therefore, allow the complainant to continue with his complaint, and not place an excessive cost burden on the state may seem attractive but it places a much greater financial burden on the press than the existing PCC system (exacerbated by the likely requirement for new internal complaints and compliance systems).

The new regulator is also likely to have a more broader remit, with responsibility for at least some online-only publications, and levies on publications may have to be substantial in order for the new functions it is to take on to work.

Suggestions that a ‘polluters pay principle’ (Black 2012: para 92; Media Standards Trust 2012: 80) should be in operation to ensure that the additional burden is borne by those publications that are found to be in breach of the code has a certain attraction since, if properly calibrated, it could avoid or reduce substantially any need for state funding.

In the environmental field, the government’s use of administrative cost-recovery charging has resulted in those premises which are most frequently visited, or engage in more dangerous activities, or have a record of non-compliance, paying more than other regulated operations (Bell and McGillivray 2008: 240-241).

If an unethical media organisation is to pay more of the costs of the regulatory system this would deter breaches of the code, which would have the virtue of incentivising publications to comply with the code. If this works then it would help reduce the costs to the regulator over time as the regulator would have less work to do.

The need for government funding in such a system may therefore seem to be unnecessary, although questions remain as to whether the state should give a one-off start-up grant to enable the new regulator to start  and provide a financial buffer in case of media organisations being reluctant to pay their dues.

A further issue which needs resolving is what publications the new regulator should cover. The ‘death of print’ and emergence of online news outlets such as the Huffington Post suggests that the new regulator should be spreading its wings beyond traditional printed newspapers and journals. This immediately raises the spectre of control of the internet and the blogger, and possible major infringement of free speech.

The Media Standards Trust’s suggestion that regulation should only be applied if the media company was of a particular size or wished to voluntarily join the regulatory regime (Media Standards Trust 2012: 73-75), might draw into the new regime major online publications or those online publications wishing to demonstrate ‘journalistic credibility’. But it would still exclude many tabloid or celebrity websites which are more likely to engage in the type of ‘journalistic practices’ which may be unethical.

Such sites might have a large following, yet not the personnel nor turnover, to fall with the proposed Media Standards Trust’s regulatory system. In one sense this may not matter as engagement in unethical behaviour by such sites may also involve breach of the law, and lacking the resources of major media players, such sites will be checked to a degree by the ordinary law. The target of their attention celebrities can afford to litigate when there are invasions of privacy or harassment, whilst if ‘civilians’ are caught up in the report the relatively cheap harassment suit or prosecution is available.

The problem with online publications is that they can be set up relatively cheaply and quickly and have a huge following in a relative short space of time. Their influence can, therefore, be potentially as important as major media players, and the spectre in recent years of politicians playing to websites such as Mumsnet, shows how even what might be considered a non-political special interest site becoming an agenda-setter.

Yet no one would suggest that Mumsnet should be regulated. It provides news much in the same way as the newsletter or bulletin did in the pre-internet world. Can a definition of the type of site which has a degree of equivalence to the newspaper rather newsletter be made? If it can, what is to stop such sites off-shoring? Extending a regulator’s coverage to online and new media platform publications is perhaps one of the most difficult tasks facing Lord Justice Leveson.

Lord Justice Leveson’s draft criteria states:

Any solution must be perceived as effective and credible both by the press as an industry and by the public: a) It must strike a balance, capable of being accepted as reasonable, legitimate and in the public interest by all (Leveson 2012: 1.1.).

The public interest is at the core of the new regime, and it must be addressed both in the structure of the new regulator, its powers and the code it enforces.

For this reason, it is important that Lord Justice Leveson ensure that the new regulator does not overburden the press with costs and new sanctions, but provides sufficient relief to those complaining about press misconduct; minimizes both press and state influence over the regulator (which can be achieved by increasing the presence of laypersons and including representatives from civil society and journalist organisations such as Liberty and the NUJ); and ensures that all regular publications above a certain size (which might include elements of turnover and readership) are within its control.

This suggests a form of statutory regime which makes membership of the new regulator compulsory for those publications that meet criteria similar to those in the previous sentence.

References

Bell, Stuart and McGillivray, Donald (2008) Environmental Law, Oxford: Oxford University Press, seventh edition

Black, Lord (2012) Third Witness Statement of Lord Black of Brentwood to the Leveson Inquiry. Available online at http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Submission-by-Lord-Black-of-Brentwood1.pdf, accessed on 20 July 2012

Frost, Chris (2012) Witness Statement of Professor Chris Frost, Chair of NUJ Ethics Council, National Union of Journalists. Available online at http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Submission-by-Chris-Frost-on-behalf-of-the-National-Union-of-Journalists.pdf, accessed on 20 July 2012

Hunt, Lord (2012) Submission to the Leveson Inquiry of the Rt Hon Lord Hunt of the Wirral MBE. Available online at http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Submission-by-Lord-Hunt-of-Wirrall1.pdf, accessed on 20 July 2012

Index on Censorship/English PEN (2012) Alternative Libel Project: Submission to the Leveson Inquiry. Available online at http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Submission-by-Alternative-Libel-Project-English-PEN-and-Index-on-Censorship.pdf, accessed on 20 July 2012

Leveson, Lord Justice (2012) Draft criteria for a regulatory solution, Available online at http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Draft-Criteria-for-an-effective-Regulatory-Regime.pdf, accessed on 20 July 2012

Media Regulation Roundtable (2012) Final proposal for the future regulation of the media: a Media Standards Authority, Available online at http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Submission-by-Media-Regulation-Round-Table.pdf, accessed on 20 July 2012

Media Standards Trust (2012) A free and accountable media: Reform of press self-regulation: Report and recommendations, Media Standards Trust submission to the Leveson Inquiry. Available online at http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Submission-by-Media-Standards-Trust.pdf, accessed on 20 July 2012

Press Complaints Commission (2012) PCC transition to a new regulatory body, Available online at http://www.pcc.org.uk/news/index.html?article=NzcyNA==, accessed on 20 July 2012

South West Wales Media (2012) Submission to Leveson Inquiry, Available online at http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-from-South-West-Wales-Media.pdf, accessed on 20 July 2012

Note on the contributor

Dr Damian Paul Carney is Principal Lecturer in Law at the University of Portsmouth. A qualified barrister, he has published extensively on media law including the first legal academic article on phone-hacking at the News of the World. Currently, he is writing a monograph that studies the use of unattributed sources by journalists and other public communicators.

This is an extract from The Phone Hacking Scandal: Journalism on Trial, second and updated edition (edited by Richard Lance Keeble and John Mair). It will be published by Abramis on 15 October 2012. This online version was edited for format.

With the Justice and Security Bill due soon, some interesting issues are arising around the use of closed material proceedings in Employment Tribunals. Under Rule 54 of the regulations that govern procedure, closed proceedings and the exclusion of a party and their legal representative can be used in Crown employment matters if it is ‘expedient in the interests of national security’.

In April, it was reported in the Telegraph that there is a current action against GCHQ. On 12 May, the Telegraph reported on an action against the Metropolitan Police related to the suspicion of a police officer having attended terrorist training camp, the suspension of the officer’s counter-terrorism security clearance, and the legal proceedings in the Employment Tribunal.

In that matter – Rahman v Commissioner of Police for the Metropolis & the Secretary of State for the Home Department (UKEATPA/0076/09/RN & UKEAT/0125/10/RN) – Mitting J has said that there is ‘a legitimate public interest in those parts of the proceedings from which the Appellant and his legal representatives are not excluded’ and ‘cogent reasons’ would be needed to exclude the public.

(It might be said that even if the public can be excluded whenever the Appellant has no access, there is nonetheless still a legitimate public interest in all aspects of these proceedings.)  However, it seems clear from the judgment that closed proceedings will play a very substantial role in this case.

The Employment Tribunal matters are interesting not only of themselves but also because the Justice and Security Green Paper cites it as a jurisdiction where closed material proceedings are well established, and thus it forms part of the normalising landscape within which general closed material proceedings are said by the government to be acceptable.

However, as with all closed material proceedings in existing areas, including SIAC, there seems no record of how often they are used. The MP for Tooting, Sadiq Khan, has asked the Justice Secretary to answer on 14 May the question: ‘on how many occasions a closed material procedure has been used in an employment tribunal in each of the last 10 years’.  It is an important question.

Moreover, any proposals in the Justice and Security Bill should ensure that such records are kept and reported regularly, and that all orders for closure are reviewed periodically so that matters of public interest do not remain secret for any longer than absolutely necessary.

Lawrence McNamara runs the ESRC-funded Law, Terrorism and the Right to Know project at the University of Reading.

Today (Monday 20^th February), a group of us are formally launching a new campaign. As the title of this post suggests, we are campaigning to #saveFOI.

This week sees the beginning of the long heralded post-legislative scrutiny of Freedom of Information promised by the Coalition Government last year. On Tuesday morning, the first witnesses, including the head of the Campaign for Freedom of Information, Maurice Frankel, will be appearing before the Justice Select Committee.

Last week the Committee published the written evidence that it has received. What is striking about this evidence is how many public authorities have called for restrictive amendments to the Freedom of Information Act. Some have called for charging to be introduced. Some have suggested that the cost limit for answering requests should be brought down, so that more demanding requests can be refused. Others have even suggested bringing in whole new exemptions for information that they hold.

This comes hot on the heels of comments from the outgoing Cabinet Secretary Lord Gus O’Donnell who has been openly critical of the Information Commissioner’s decisions in respect of Cabinet minutes. Others will be aware that our former Prime Minister Tony Blair considered himself a “nincompoop” for introducing FOI. There have been plenty of others queuing up in recent months to add their voices of complaint to the chorus of disapproval of this legislation, only 7 years after it came into force.

It is hard to think of another requirement on public bodies that attracts such venom and open hostility. And these views are diametrically opposed to the views of most people outside the public sector who welcome this important tool for holding public authorities to account.

Even some inside Government are suspicious of the motives of the Act’s government critics. The Minister responsible for FOI in the Ministry of Justice, Lord McNally, commented in a recent House of Lords debate that:

 “…when Prime Ministers and mandarins object, this Act might actually be doing something that it was intended to do.”

And yesterday, writing in the Observer, the Information Commissioner himself made it quite clear where he stands. He dismissed Lord O’Donnell’s criticisms, and dispensed with suggestions from universities that they need a whole new exemption for research data.

Nevertheless, the mood music suggests that there is a desire to contain this young legislative upstart. Some of us even inside the public sector feel very strongly that to do so would be a backwards step. Yes, some individuals abuse the right to access information. Some requests are expensive to answer. It can feel personal when a request affects your work. But the overall benefits, whilst difficult to quantify in hard numbers, far outweigh the problems.

It has forced public authorities to open up in a way that would have been unimaginable a decade ago. It has allowed groups from protesters against library closures to disability rights campaigners to make their case to Government on something approaching an equal footing. It has exposed unfairness and inequality in our country. I believe it is starting to make an impact on the effectiveness and efficiency of some public authorities. In short, it makes the UK a fairer country to live in.

And the UK doesn’t exist in isolation. Countries across the globe are adopting FOI legislation. As Nigeria and the Philippines debate the opening up of their governments, is it right that the UK can be considering reducing the rights of its citizens?

So we are standing up to make the case for FOI this year. And we want as many people as possible to join us. So please take a look at our campaign website and consider how you can help us to #saveFOI.

Paul Gibbons is creator of the FOI Man blog and is @foimanUK on Twitter. 

UCL and Bindmans co-host an annual debate on a topic concerning the Press, and this year saw the fourth such debate in the series. With all that has gone one in the preceding twelve months, this debate was incredibly ‘on-topic’ and was unsurprisingly incredibly packed with attendees from such large law firms, news organisations, and others involved in the Press.

The speakers for the debate were:

• The Rt Hon Tessa Jowell, MP for Dulwich and West Norwood;
• Martin Moore of the Media Standards Trust;
• Max Mosley; and
• Gill Phillips, Director of Editorial Legal Services for the Guardian.

The chair of the debate was Hugh Tomlinson QC of Matrix Chambers., with introductions made by Professor Dame Hazel Genn DBE, Dean of Laws at UCL, and Tamsin Allen, partner at Bindmans LLP.

Tomlinson started by setting a few ground rules for the discussion and two key questions: is it time for a privacy law, and is it time for statutory regulation of the Press? With the Leveson Inquiry in full flow and being broadcast, people are incredibly aware of the power of the Press, more so than during the time of the Calcutt Commission which advised the creation of a Press Complaints Commission.

The first speaker up was Tessa Jowell, who said she was basing her talk on her time at DCMS. For her, this is a key moment in time for a change. Her view was that we should not get stuck in past events, and that this period was something bigger than just between politicians and the media. It was the shock of the NewsCorp dealings with the police to get the public concerned with this issue: the public are more discerning than they are given credit for and the knowledge of the relationship between politicians and the media is well known.

She followed this with the point that nobody was that interested in the revelations about public figures; the public expect it as part of a celebrity’s media relationship. However, despite the revelations, a free Press is a must. The alternative is a lot worse, so there must be a better way to get a good settlement and a good balance.

Jowell said that she has no sense of political scores being settled by the hearings [AF note: though this may need to be re-evaluated in light of the Dacre/Grant spat]. The Press should be free, but needs a better understanding of what is acceptable as a method of getting a story. The Press should also be free of those with discernible vested interests, including those of the editors (especially their pact of mutual protection). There is a clear need for duality and balance; when the Press works along those lines it does its job best. The CMS committee is doing an excellent job of redrawing that balance.

Technology is allowing people to self-inform, and it is moving quickly. In Jowell’s opinion, the Leveson Inquiry is solving yesterday’s problems. There still needs to be concern about the ability of everyone to access justice relating to the Press, not just the rich. Serving in public life should be upheld as a good thing, but there is a risk that the quality of people coming forward will degrade due to the press risk. As DCMS Secretary, Jowell believed that media literacy was something to be promoted, especially the notion of words and timing. Instead, she feels that regulation is only the starting point; we need to look to an engaged and assertive public demanding the freedom of an intelligent Press.

Martin Moore followed up; he agreed with Jowell in that privacy as an issue is far bigger than the Press. Moore made reference to a Mark Zuckerberg interview where he stated that the age of privacy is over, and he would have made all information public from the start. He pointed out that the practical boundaries of private life have changed, the restraints have almost disappeared, publication is easy – especially with Facebook. He pointed to the suicide of Tyler Clementi -  the publication of videos and the consequences show that the practical restraints have gone, but we need something to replace them. People generally believe that there should be some privacy protection; people should respect the line between the public and the private. If there are no formal constraints, some agencies will use any means to get the story.

However, Moore pointed to the increased use of legal constraints to fill the gap of the now-defunct practical restraints, but this causes further tensions about where the line lies. That this legal protection exists is sensible, but the real question is how to protect the journalist’s right to intrude in the public interest.

This public interest defence barely exists in the protection legislation that is used often, using the case against the Guardian journalist to reveal her source as a good example of this. He set out some themes that form a public interest defence in codes created for organisations:

(i)           preventing the dissemination of misleading information;

(ii)          disclosing decision making for the public interest;

(iii)         for health and/or safety;

(iv)         to prevent corruption; or

(v)          for the prevention of crime.

However, the one that never gets included is to test allegations of hypocrisy. A right of intrusion would better define the line between public and private. Good journalists will have the confidence to act, bad journalists will think twice.

Gill Phillips followed Moore. Her talk was based upon the Press’ perspective. The state of a democracy is shown by the health of its press. She doesn’t believe that statutory regulation is the answer, but there needs to be a new way of regulating. However, in that search for a new way, we must keep our perspective. Phone hacking is not a failure of regulation, but rather an instance of criminality at a paper and a failure of the police to investigate. Since printing has started, there have been state attempts to control the Press [AF note: a legal history lesson is always welcome].

Illegal printing has in the past resulted in hanging or disembowelling. However, this control works both ways, with the Press involved in a back-scratching relation with the political elite. History tells us that the instinct of those in power is to control the Press strongly, but this is coupled with the knowledge that regulation distorts access to the truth. Phillips suggested that a form of ‘PCC max’ is required, as self-regulation was never full self-enforcing, but also pointed out that questions exist over blogging, as they operate on the edge of reporting. There will always be those who engage in luminal activities, and more top down regulation will not help, so it is not needed. What needs to be remembered is that this moment in time is part of a wider battle over access to information.

Max Mosley’s opening point was that we don’t want a controlled press, but neither do we want a press-controlled government. People who aren’t British citizens can control the actions of the British government [AF note: his mention of Tony Blair’s visit to Australia makes it clear who this is a reference to], and while the PCC has not failed to make the rules, it has not enforced those rules and cannot do so. He asked how we can enforce them without state control, and his suggestion was to separate the rule-making arm from the enforcement art, which should be completely independent. At this point Phillips interjected, saying that the creation of the free press has been a long fought battle, but admits that some changes do need to be made. Mosley said that there is a clear need to define the public interest in statute. Any such statute must contain some presumptions as to what the public interest is, but it is important that these presumptions can be rebutted. He also requested that any such statute allows the prevention of publication if it is required.

Following the speeches, there was time for some questions:

The first question looked at the Press and incivility; as women are being objectified and disabled people attacked for claiming benefits, what did the panel think of this?

Mosley pointed to the evidence given by Moy at the Leveson Inquiry which showed that this is a problem that is coming to the fore, including collusion with government departments over stories to help foster an attitude towards policies. Jowell furthered this by remarking that some papers focus more on the sales they make to certain groups more than the dissemination of information. However, she made the very important point that we can rely on drafting regulating principles well, to safeguard every reader from offence – we should rely on people being offended on behalf of others and to refuse to buy the paper.

Mosley set out a plan for a free tribunal that would give access to anyone feeling aggrieved by the Press, with a hearing being allowed on one of four grounds: defamation, accuracy, offence, and misleading information. Phillips also said that offence is a matter of internal culture, and the appropriate use of words. Complaints are also learning opportunities for the Press, working out when they go too far. It is the only way the Press learns, such as describing victims in a derogatory way, i.e. acknowledging that a murder victim is a prostitute when such a description is not required.

A second question noted that this is just a part of a wider debate, and asked what the panel thought about whether a press commissioner should be a privacy commissioner. Another question asks why no-one seems to have done anything about the police passing information to the press.

Jowell agreed that the police passing information is an accepted fact, that it helps to supplement the income. As the cases are dealt with by the relevant authority, the government didn’t look at the problem systemically. However, it is important to remember that most police don’t do this, that they feel ashamed and wish to reassert the professionalism of the police. Mosley did however ask why the Home Secretary has never required the Commissioner for Police to investigate. He also referred to Hugh Grant’s statements in evidence that a call to the police would lead the journalists to arrive before they do. Phillips agreed with this, as the journalists knew that Harry Redknapp was to be arrested; the question is how.

Tomlinson then brought the question back to one of a privacy commissioner. Moore said that that the idea sounds sensible but looking at the ICO, the commitment and practicalities regarding resources would need to be met and safeguarded to make it work. Mosley returned to his idea of a free tribunal to adjudicate matters.

Following on from this, a question was asked about who should sit on such a tribunal to ensure that it is a fair deal for both the press and public.

Mosley’s response was barristers or solicitors could the tribunal ‘judges’, but as with the PCC as it stands, it should be funded by the Press. He noted that this is cheaper than the overall cost of litigation. Jowell liked the idea of a tribunal and the presumptions for public interest in a statute, but also suggested that members of the public be used for the tribunal as well. Jowell said that any system would require proportionality and access to representation for those who want it.

A fifth question noted that the definition of public interest is a key issue but asked how it could be defined. Following that, should people in the public eye be held to a higher standard? A sixth question asked how the public interest matter sits with the need to sell papers, and a seventh question asked how privacy on the Internet can be protected. Can we draw a line?

Moore said that transparency can have a chilling effect on poor behaviour, and that the public interest is also about what isn’t in it, as well as what is. Jowell went further, saying that the consequence of press campaigns can also intensely damaging, pointing to the Daily Mail’s campaign against the triple vaccine which has been found to be untrue. Jowell believed that the Internet would have been a strong force for good in that. Mosley said that just because something is popular doesn’t make it right. For him, the net is just another medium – removing the power of its mystery is key. On the matter of public interest, Phillips believed that there should be positive criteria for public interest, including public information and encouraging debate. There should be a stronger and clearer definition of privacy, and the public need to be educated about the dangers of the net.

Analysis

What was clear from this was that there was no real debate around the matter as such: all the panel agreed that change, and drastic change at that, was needed. All also agreed that the freedom of the Press is important, and that the revelations we have all become familiar with are the work of only a very small number of individuals. It was however very interesting to note that the PCC was very rarely mentioned, and it seems that the panel reflected the public mood that the PCC is now a defunct organisation.

However, there was very little to be said about what could be done to effect this change. Mosley’s idea of a free tribunal is an intriguing one, fairly similar to a plan devised by Chris Bryant MP, and incredibly similar to the organisation Early Resolution which started up last year. However, this doesn’t seem to help with the problems of self-regulation that we have seen arise from the Leveson Inquiry. It was merely agreed that it was a difficult task, as it requires both a controlled and a free Press to exist. These ideas seem mutually exclusive, and the panel acknowledged this. Perhaps the silence on this from the panel was out of respect for the ideas that will come from the Leveson Inquiry, or perhaps it was more out of recognition for what a difficult question it is to answer.

About the author: Adam is a barrister, and was called to the Bar by the Inner Temple in July 2011. He wishes to practise in media and public law, and blogs on these subjects at www.adamfellows.com. He is also the treasurer of Independent Academic Research Studies, a youth-led think tank with the aim to empower young people and encourage them to engage in the political process and justice, and has since embarked on an LLM (distance learning) in Information Rights Law and Practice with an elective in media law and privacy.

Abstract: This paper explores aspects of the early history of relations between London-based journalists and London’s police from the origins of the Metropolitan police in 1829 with the aim of providing a historical context within which the present crisis can be placed.  It analyses the reasons for the development of a uniquely close relationship on the basis of a set of permanent, mutual needs, despite recurrent  attempts to regulate and control police-press communications.

Apart from the issues of ‘corruption’ raised by the monetary relationship between police and press, the changing nature of the needs of the popular press for a regular supply of crime-related stories and ready access to victims and perpetrators, are balanced against the requirements of the police for positive publicity in its political struggle for resources, the development of police careers, and crime prevention and law enforcement.

“No one pays like the News of the World do.” (Attributed to the private eye Jonathan Rees, Davies 2011)

‘20 per cent of the Met [force] has taken backhanders from tabloid hacks.’ (Paul McMullan talking to Hugh Grant, New Statesman 2011)

‘Police investigating allegations of illegal payments to officers by journalists arrested a 48-year-old man today. The man, believed to be a journalist, was arrested at about 10.30am at an address outside London in connection with allegations of corruption and was taken to a south west London police station.’ (Press Gazette, 4 November 2011)

One fall-out from the recent revelation of what appears to be an extraordinary cash nexus between the News of the World and the Metropolitan Police and the possible involvement of other popular newspapers is that we may need to revise the essentially comforting proposition in the academic literature on crime and the media that payments to police for information by the press have been comparatively rare.

To take one major example: Steve Chibnall’s classic book Law and Order News, published in 1977, has been highly influential for a generation in setting a frame within which British police – press relations could be viewed. (Chiball 1977b, and see Chibnall 1975a and b, 1977a, 1980, 1980,1981).  Crudely summarized, this frame was that instances of the payment of police sources have been comparatively minor and that payment is only part, and a small part, of the rich spectrum of police / press relations – and mainly used, Chibnall observes, by less experienced reporters, ‘on the fringe of a specialization’ without the right contacts:

‘I was told of one such journalist who was obliged to take a bottle of whisky with him every time he visited a policeman: A second complained  ‘I’m in a moral dilemma – I will not pay policemen for information (athough I’m prepared to buy them a beer or a meal) and I do not have the regular contacts which most crime reporters have. So what do you do when you want information? Well, the best sources are either bent policemen who want money for stories, of disgruntled policemen who don’t usually want payment…’ (Chibnall 1977b, 149-50)

In a brilliantly suggestive scenario, Chibnall describes a pattern in which friendship and trust links between journalists and police officers are ‘characterized by exchange’ (152). Journalists and police are in a trading relationship in which intangible invisible goods such as friendship, sociability, information, gossip and the reinforcement of mutual esteem counts for more than cash:

‘The most obvious exchange resource the journalist has at his disposal is money. But, although direct payment of certain types of sources is recognized as legitimate, it is generally considered as inappropriate (although not unknown) method of getting information from the police. It is far too crass and unsubtle and defines the reporter / source relationship as one of business rather than friendship.

The offer of food and drink, on the other hand, carries connotations of sociability rather than commerce or corruption … other, more powerful exchange resources… derive from [the reporter’s] position within an organization offering the possibility of instant communication with the public…crime reporter is able to act as intermediary between the press and the police …can facilitate the launching of formal public appeals about crimes but he can also help the police to communicate with specific individuals or minority groups…favourable comment on police activities…’ (153-4)

Over time, Chibnall argues, this leads to a process of ‘assimilation’ – and police officer and journalist bond and begin to reflect each other.

Overall this is a comforting picture of human sociability. It confirms a human side of the police and of the journalist, where mutual manipulation is softened by friendship. But this essentially sentimental picture is called into question by the News of the World revelations, as another one of journalism’s sustaining myths.

Two conclusions might be drawn: 1. That the comforting myth was in part true, and there has simply been a major change in the relationship between the media and the police in the last 30 years. Specifically we might point to the rise of the modern private investigations industry, worth £250 million a year (Milmo et al 2011) and acting as an intermediary by means of which this relationship, like many others under capitalism, can be outsourced.

We might add some observations about extraordinarily rich or desperate newspapers in ferocious competition. This is broadly the conclusion of Nick Davies, who argues that ‘there has always been a little dirty places, a little illegal stuff going on in the shadows of Fleet Street’ (Davies 2008, 266) but confesses ‘its never easy to look back…and see how the germ first started’. He locates the origins ‘in the old days’ some time before the 1970s, when ‘crime reporters regularly bunged cash bribes to serving police officers in order to procure information’.

Davies argues that the new regime at Scotland Yard inaugurated by Sir Robert Mark  ‘crushed the old corruption in the mid 1970s’ but that by the early 1980s newspapers had established a new way to bribe police officers through the mechanism of private investigators (Davies op cit,267). Davies’s succinct account is echoed in the rambling, surreal testimony of the former News of the World journalist Paul McMullan before the Leveson Inquiry. When asked if police officers were prepared to accept money in return for information, he said:

‘Yeah, not as much as they did in the 1980s, but now I think it would be very difficult to offer a policeman pretty much anything for anything.  But certainly, as – well, the 70s was a notoriously corrupt time, but then it got stamped on and got progressively harder to get information from the police unless it was in an official way’. (Leveson Inquiry 2011)

But one might draw a contrary conclusion: 2. that something has been missed, and /or not much talked about, in descriptions of the history of crime journalism, and that ‘assimilation’ was often on the basis of a mutually profitable relationship between police and journalists.

Of the industrial scale of the operation by the late 90s there is no doubt – Davies relates that, in March 2003

‘the Information Commissioner’s Office raided the home in New Milton, Hants, of a private investigator named Steve Whittamore and seized a mass of paperwork which turned out to be a detailed record of more than 13,000 requests from newspapers and magazines for Whittamore to obtain confidential information, many of them potentially in breach of the law. Several staff from the Guardian’s sister paper, the Observer, were among Whittamore’s customers.’ (Davies 2011)

Estimates vary widely as to the number of metropolitan police officers and detectives the News of the Screws may have had on its books by the time its 168 year career was brought to a tragic halt in July 2011. The revelation of industrial scale bribery confirms the suspicion that journalists paying the police for information is now deeply rooted in the culture of the British popular press. But was it ever thus?

Few things are more tedious than the historian’s reflex of ‘Nothing new…’ But it can be argued that this goes back to the birth of the popular press and that we simply have no reliable evidence to assess its scale. What can be inferred is that crime news was one of the basic staples in the rise of the press in the early nineteenth century, along with gambling, sexual scandal and sport. Along with sport and scandal, crime was commodified.

The Newgate Calendars of the late 18th century, full of bloody murders and last dying speeches on the scaffold, blazed the way, and were the most popular and profitable publications of their day. Newspapers created a rough and ready form of ‘soft’ social regulation to which the early police played a ‘hard’ role.  Dickens refers disparagingly to the ‘Old Bow-street Police’ and their propensity to hang around with Grub Street denizens:

‘we think there was a vast amount of humbug about these worthies. Apart from many of them being men of indifferent character, and far too much in the habit of consorting with thieves and the like, they never lost a public occasion of jobbing and trading in mystery and making the most of themselves. Continually puffed besides by incompetent magistrates anxious to conceal their own deficiencies, and hand-in-glove with the penny-a-liners of that time, they became a sort of superstition. (Dickens 1850 in Slater 1997, 266 my emphasis)

The Bow Street office was finally disbanded in 1838 (Metropolitan Police 2011). Dickens himself played a significant role in the rise of the modern British police, and his enthusiastic promotion of the Metropolitan Police, in 1829, and the creation of the Detective department in 1842 (ibid), directly parallels the creation of the modern popular press. (See Collins, 1965; Shpayer-Makov, 2010)

The prime exponent of this popular press was to become The News of the World, from its start in 1843, but it joined a host of weekly popular newspapers, such as Robert Bell’s Penny Dispatch (1841) and Edward Lloyd’s Penny Sunday Times and People’s Police Gazette (1840), in shocking crime news, and a diet specializing in ‘seductions, rapes, murders and any other sort of horror’ (Morison 1932, 242).  Until the advent of Alfred Harmsworth and the rise of the popular daily newspaper of the 1890s, this was the largest and economically most buoyant part of the British press, organized on a prototype of the factory lines that 50 years later would become commonplace.

Given its size and profitability, it is at least plausible that paying, as well as wining and dining police officers and detectives for tips, was fundamental to this culture of Victorian popular journalism, but these papers  - particularly Robert Bell’s – were also frequently prepared to attack the newly established police as well as the church ‘and anything else established.’ (Morison 242)

This was not just a working class market. The middle-class magazine Household Words, which Dickens started in March 1850, fished in the same waters with somewhat different motives and featured a substantial number of articles on the police, many concentrated in the first issues and focusing on the work of detectives.  Although the evidence is slight, it is highly likely that Dickens made payments to favourite police officers, as well as publicly hosting parties for detectives in his offices (Dickens 1850). He wrote stories for his magazines based on the use of his police contacts, edited and rewrote police articles by his contributors, and accompanied police raids into the East End. In an age that was very suspicious of the organised state, he functioned as a one-man propagandist for the new police force.

This campaign involved a high degree of selective perception and contemporaries criticized what appeared to be a hero-worshipping tendency – most unlike Dickens – that seemed to take him over when he got near a detective or an imperturbable man in blue. Other critics, such as Humphrey House in his classic book The Dickens World (1942), puts it down to his authoritarian tendencies and his obsession with neatness and precision, and – House was writing in the Freudian-ravaged 1930s – his anality.   Untidy criminality needed to be sorted out and his articles about night tours with the police and the detective parties in his office, House says, ‘show a kind of clerical satisfaction in the functioning of a well-run organization.’ (House, 202)

The account has considerable explanatory power, although it ignores a fundamental source of the detective – author love-in – for Dickens and for other journalists.  This is the fundamental congruence of their respective crafts, well summarized by Haia Shpayer-Makov:

‘To a great extent, the activity of Victorian and Edwardian detectives was similar and, increasingly they were expected to do similar things. The essence of their work relied on investigation – on the act of probing and exposing…both developed the skills of taking evidence, interviewing witnesses and, on the basis of scattered pieces of information, constructing a narrative, often explaining a burning or puzzling issue. Their professional status depended on their ability to perform these tasks repeatedly and successfully.’ (Shpayer-Makov 2009)

Payment of course was, by its nature, covert. One of the most celebrated policemen of the Victorian age, Inspector Charles Frederick Field (1805-1874), chief of the detective branch from 1846, owed his prominence to Dickens. After Field retired in December 1852 and opened a private inquiry bureau, Dickens is reported to have subscribed £300 to a testimonial (a sizeable sum equivalent to about £8000 today), although there is some dispute about this [i].

Other evidence of payments is a bit scarce. As an editor Dickens was tight with money in his payment of contributors to Household Words.  (Buckler 1951, 1180) However, in a letter to his chief sub editor W. H. Wills in April 1851 setting out his plan for another police article that became ‘The Metropolitan Protectives’ (Household Words 1851) he wrote:

‘any of the Scotland Yard people will do it, I should think; if our friend by any accident should not be there, I will go into it. If they should recommend any other station house as better for the purpose, or would think it better for us to go to more than one under the guidance of some trustworthy man, of course we will pay any man and do as they recommend. But I think one topping station-house would be best.’ (Stone, 253-4 my emphasis)

Over this period, the Metropolitan Police acquired an unsavory reputation for corruption and incompetence, and there were some big scandals in the 1870s after Dickens’s death. From its origins the question of ‘perks’ was a live issue, although 4 out of 5 of the men dismissed were sacked for drink related offences (Emsley 1991, 221) Recurrent efforts were made to control the use of perks at various points in the 19^th century. Indeed, ferocious attacks by the press on police venality and incompetence were a feature of the late Victorian scene – particularly marked during the outbreak of murders in the East End in the 1880s attributed to ‘Jack the Ripper’ (Cobb 1956, Chapter 16).

Conan Doyle’s limited Inspector Lestrade,  ‘one little sallow rat-faced, dark-eyed fellow’, sprang from the fertile ground of a stack of press cuttings. (Doyle 1887).  Payments to policemen only in fact became comprehensively illegal with the passing of the Prevention of Corruption Act in 1901, and it was made an offence for a police officer to receive payment and for someone to make one, in the context of recent increases in police pay and allowances. (Robertson 2011) According to Chibnall, a major reason for the reluctant establishment of the Scotland Yard press office in 1919 was ‘fears about unauthorized leaks produced by reporters bribing officers’ (Chibnall 1979).

By that time a cosy and, to some extent, self-regulating culture had arisen between a corps of Fleet Street crime correspondents and the police in which each side needed each other – the police used the press for publicity, to get a result, to fight for better resources and advance their careers.  Journalists relied on police tip-offs to get the latest information, access to victims and lurid details to dress up stories.  Copious amounts of alcohol in a number of well-established London watering holes oiled the relationship. But references to money payments in journalist’s memoirs are sparse. Hints remain. Consider the guarded references of  Frederick Higginbottom – a noted Pall Mall Gazette journalist – in his memoirs:

‘Go back to notorious murder mysteries of the eighties of last century … Every one was written up by expert reporters in touch with the police, and each of them provided sensations for months. The police used the Press then, as they do now, and they gave away information freely if it helped them to trace a missing suspect.’ (Higginbottom 1934, 15 my emphasis)

Now a host of accounts have begun appearing in the press testifying to the ubiquity of this culture. For example, Duncan Campbell observes:

‘It has always been known, by both police and the press, that some officers will trade information for money. Victims of crime or tragedy are often amazed at the speed with which the media arrive in the wake of the emergency services. Now they know why.’ (Campbell 2009, my emphasis)

A ‘veteran journalist’ in the Camden New Journal claims:

I CANNOT see why such unforgiving looks were given to Rebecca Brooks, chief executive of News International, for telling a Commons committee that journalists paid police officers for stories – or words to that effect.

Journalists of another generation would know that it was common practice to pay policemen for stories.

When I worked on a west London weekly, too far back in time to date in this column, I would drop in to the local cop shop and if a story given by an officer was sold on to a national or London evening, the proceeds would be shared.

Today, this would be considered a corrupt practice, I suppose, but it shades into insignificance compared with what is fundamentally wrong with many journalists.’ (Camden New Journal 2011, my emphasis)

As the Telegraph observes:

‘Payments by journalists to police officers have a long history. One long-retired crime correspondent recalls having a list of officers to whom he would regularly send a £5 note “wrapped in a plain WH Smith envelope”.

“I’d never use office stationery and I’d use a different typewriter each week so it couldn’t be traced,” he said.

“I never felt I was bribing them but of course I was. But then these weren’t just tips they were giving me,” he said with professional relish. “These were stories that could go straight into the paper. What I liked best was when they told me the story before they’d even told Scotland Yard.”’ (Born 2003)

However, Chester Stern, a former crime correspondent at the Daily Mail and Mail on Sunday with 20 years experience, told the Telegraph in the same story that the paying of police officers is much less pervasive than many think:

‘”Yes it goes on but it is very much the exception rather than the rule,” he said. Stern said that during 20 years on the crime beat he was happy to wine and dine police contacts but drew the line at giving them cash. “Ninety per cent of the information you need can be got through legitimate means.”’ (Born 2003)

The researcher of Victorian journalistic morals finds real difficulties in uncovering a covert culture whose basis was cash – the beauty of cash being of course its untraceability. Modern prosecutors with many more tools at their command, still face great difficulties, as was shown in the trial of Neville Thurlbeck in 2000.

Mr Thurlbeck was cleared of allegations that he paid a Detective Constable Farmer to supply information on people whose details were kept on confidential police computer records. The prosecution alleged that Farmer made scores of police computer checks on people’s criminal records for him and cited 36 stories in the News of the World allegedly containing information supplied by him, including:

‘a Labour MP with a conviction for committing an obscene act; an alleged threat to the Queen from stalkers; a story about a man said to be involved with the mass murderer Rosemary West; and a priest with convictions for sex offences. He said the recorded outgoings of Det. Con. Farmer and his wife dropped between the start of 1997 and mid-1998, suggesting he had an alternative source of cash.’ (Farmer 2000)

Conclusion

But does this expensive pursuit of information brokers and allegedly corrupt police officers serve the wider public interest? Most of it is likely to be very hard to prove and former Metropolitan police chief Brian Paddick argues that there is ‘absolutely no point’ in attempting to investigate whether journalists were paying police officers: ‘if these claims are true’ he says, ‘then it is most likely officers were paid in cash and there is no way of proving it’ (Channel 4 News 2011). Although one might observe that this seems to discount a careful auditing of gold bath taps against the ostensible income of the officer.

A final point to ponder: could efforts to stamp out payments between hacks and cops lead to the death of popular journalism? Optimistic estimates are that as many as 140 Mirror Group journalists may face criminal charges. As Guido Fawkes dramatically claims:

‘The idea that this crisis is only about News International is fanciful…In short every major newsroom in the land has used illegal techniques to obtain information. We are on the verge of criminalising hundreds of journalists.’ (Fawkes 2011)

So here’s an interesting ethical conundrum. Freedom of the press may require us to argue for a tolerable level of corruption to enable crime to be reported, especially the crimes of the powerful, in the wider public interest. It doesn’t lend itself to transparency, or ethical puritanism, and it doesn’t exactly meet any Kantian test – mild corruption of the police by journalists might indeed lead to highway extortion for imaginary driving offences, as happens in Russia and the ex-Soviet republics. But it may be a price worth paying.

References and bibliography

Born, Matthew (2003) Paying the police: newspapers have a lot of form, Daily Telegraph 14 March http://www.telegraph.co.uk/news/uknews/1424573/Paying-the-police-newspapers-have-a-lot-of-form.html accessed 17 October 2011

Buckler, William E. (1951) Dickens the Paymaster, PMLA, Vol 66, No 6  December, pp 1177-1180

Camden New Journal (2011) ‘Paying police for news stories isn’t the malaise of modern journalism’, 26 May 2011 http://www.camdennewjournal.com/paying-police-news-stories-isn’t-malaise-modern-journalism  acccessed 17 October 2011

Campbell, Duncan (2009) ‘The man in the mac: a life in crime

Reporting’, Guardian  5 September, http://www.guardian.co.uk/uk/2009/sep/05/crime-reporting-duncan-campbell accessed 17 October 2011

Campbell, Duncan (2011) ‘Now the painful task of cleaning up the Metropolitan police begins’, Guardian 8 July

http://www.guardian.co.uk/commentisfree/2011/jul/08/metropolitan-police-paul-stephenson  accessed 17 October 2011

Channel 4 News (2011) ‘Police “cash for info” probe “pointless” – Brian Paddick’ 15 April, http://www.channel4.com/news/reporters-paying-police-probe-pointless-says-paddick accessed 19 October 2011

Chibnall, Steve (1975a) ’The crime reporter’, Sociology 1975 9(i) 49 66

(1975b) ‘The Police and the Press’ in Brown J. and Howes G. (eds) The Police and the Community, Saxon House, 1975.

(1977a) ‘Worlds Apart: Notes on the Social reality of corruption’, British Journal of Sociology, 1977 (with Peter Saunders).

(1977b) Law and Order News: Crime reporting in the British press, London: Tavistock.

(1979)’The wooing of the fourth estate: The Metropolitan Police and the news media 1970 – 1976′, in Holdaway S. (ed.) British Police, London:Edward Arnold.

(1980) ‘Chronicles of the gallows: A social history of crime reporting’, in Christian H. (ed.) The Sociology of the News Media, Sociological Review Monograph, 29, 1980, pp 179 217.

(1981)’The Crime Reporter’  in Cohen, S. and Young J. (eds) The manufacture of news: Mass Media and social problems, 2nd ed., London: Constable.

Cobb, Belton (1956) Critical Years at the Yard, London: Faber and Faber

Collins, Philip (1965 2^nd edition) Dickens and Crime, London: Macmillan

Davies, Nick (2008) Flat Earth News, London: Chatto and Windus.

Davies, Nick (2011) ‘Jonathan Rees: private investigator who ran empire of tabloid corruption’, Guardian 11 March http://www.guardian.co.uk/media/2011/mar/11/jonathan-rees-private-investigator-tabloid accessed 17 October 2011.

Dickens, Charles (1851) ‘On Duty with Inspector Field’, Household Words, 14 June.

Dickens, Charles (1850) ‘A Detective Police Party’ Household Words, 27 July and 10 August.

Doyle, Sir Arthur Conan (1887) A Study in Scarlet, Chapter 2 The Science of Deduction -  see http://www.gutenberg.org/files/244/244-h/244-h.htm

Emsley, Clive (1991) The English Police: A Political and Social History, New York: St Martins; London:  Harvester Wheatsheaf.

Farmer, Brian (2000) ‘Tabloid journalist cleared of paying police officer for stories’ Independent, 21 July http://www.independent.co.uk/news/media/tabloid-journalist-cleared-of-paying-police-officer-for-stories-707398.html accessed 20 October 2011.

Fawkes, Guido (2011) ‘We are on the verge of killing popular journalism’, 16 July Guido Fawkes’ blog, http://order-order.com/2011/07/16/we-are-on-the-verge-of-killing-popular-journalism/ accessed 3 December 2011

Grant, Hugh (2011) ‘The bugger, bugged’, New Statesman, 12 April

http://www.newstatesman.com/newspapers/2011/04/phone-yeah-cameron-murdoch accessed 20 November 2011.

Higginbottom, Frederick J. (1934) The Vivid Life: A Journalist’s Career, London: Simpkin Marshall.

House, Humphry (1942 2^nd edition, 1965 OUP paperback) The Dickens World, London: Oxford University Press.

Mawby, Rob C. (2010) ‘Chibnall Revisited. Crime Reporters, the Police and “Law and Order news”’, British Journal of Criminology, 50, 1060-1076.

Cahal Milmo, Jonathan Brown and Matt Blake (2011) ‘Beyond the law, private eyes who do the dirty work for journalists’, Independent,13 July at http://www.independent.co.uk/news/media/press/beyond-the-law-private-eyes-who-do-the-dirty-work-for-journalists-2312702.html accessed 27 October 2011.

Morison, Stanley (1932) The English Newspaper, Cambridge: Cambridge University Press.

Robertson, Geoffrey (2011) ‘News of the World: A newspaper is gone, but an inquiry is as urgent as ever’ Guardian, 8 July  http://www.guardian.co.uk/profile/geoffreyrobertson accessed 25 October 2011.

Shpayer-Makov, Haia (2009) ‘Journalists and Police Detectives in Victorian and Edwardian England: An Uneasy Reciprocal Relationship.’ Journal of Social History 42.4 (2009): 963-987. Project MUSE. Web. 1 Jul. 2011. http://muse.jhu.edu/

Shpayer-Makov, Haia (2010) “From menace to celebrity: the English police detective and the press, c.1842–1914” Journal of Historical Research Volume 83, Issue 222, pages 672–692, November. Article first published online: 21 DEC 2009.

DOI: 10.1111/j.1468-2281.2009.00526.x

Haia Shpayer-Makov (2002), The Making of a Policeman: a Social History of a Labour Force in Metropolitan London,1829-1914, Aldershot, England, and Burlington Vt., USA: Ashgate Publishing.

Stern, Chester (2010) ‘The News of the World’s special relationship with the police’, Guardian, 6 September 2010, http://www.guardian.co.uk/commentisfree/2010/sep/06/news-of-the-world-special-police-relationship  accessed 25 October 2011.

Stone, Harry (1969) The Uncollected Writing of Charles Dickens, Household Words 1850-1859, Vol. 1, London: Allen Lane.

Websites

Leveson inquiry

Witness statement of Nick Davies, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Nick-Davies.pdf  accessed 1 December 2011

Transcript of testimony of Paul McMullan, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of-Afternoon-Hearing-29-November-2011.txt  accessed 1 December 2011

Metropolitan Police 2011: History of the Metropolitan Police – Timeline http://www.met.police.uk/history/timeline_index.htm accessed 27 October 2011.

This post by Angela Daly originally appeared on the MediaLaws.eu site

Earlier this year the British government started to consider new legislation on the topic of defamation, with the publication of a consultation on a draft Defamation Bill in March 2011.[1]

Defamation, both online and offline, has been a controversial area of law in England and Wales. For instance, the presumption is that an allegedly defamatory statement is false, with the burden being on the maker of the statement to prove that it is true; in many other jurisdictions, the onus is on the party which alleges defamation to prove that the statement at hand is false. It is also the norm in England and Wales civil cases for the plaintiff to show that the defendant is liable for the alleged wrong on a balance of probabilities.

Furthermore, the current state of defamation law has given rise to the phenomenon of ‘libel tourism’, in which plaintiffs view England and Wales as an advantageous jurisdiction in which to file cases due to the aforementioned burden of proof on the defendant, especially compared to other jurisdictions such as the (also anglophone) United States which provide defendants with more extensive defences.

The consultation also examines the position of defamation online, and especially liability for defamatory statement by internet intermediaries e.g. Internet Service Providers, user-generated content platform providers etc. The current situation for this latter group is somewhat ambiguous. Section 1 of the existing Defamation Act 1996 contains a defence available to people who are not the author, editor or commercial publisher of a defamatory statement, that ‘secondary publishers’ – such as ISPs – can use, so as not to be liable for defamatory third party content – if they can show that they took reasonable care in relation to its publication and they did not know that their action caused or contributed to the publication of a defamatory statement.

Yet the consultation on the draft bill suggests that this provision may not be sufficiently clear and protective of secondary publishers, given developments on the internet such as the prevalence of user-generated content. Thus far the legal position relating to defamatory content in blogs and discussion forums is not well-established in case-law, according to the consultation. A blog owner, for example, could be viewed as having editorial control over the content of posting and therefore the opportunity to remove any material considered to be potentially defamatory. The consultation solicits responses on the reform of this provision given the new technological environment.

In October 2011, a Parliamentary Joint Committee published a report on the bill, which also commented on the issue of internet publication.[2] The Committee proposes that there should be a new notice and take-down procedure to cover defamation in the online environment. It recognises that the current law in this area in fact encourages internet hosts and service providers ‘to ignore any dubious material but then remove it without question following a complaint’. On the one hand, this can leave defamatory statements online for long periods of time, and on the other, it can also result in entirely legitimate comments being taken down.

Thus the committee’s recommendation to the government is that pressure on hosts and service providers to take down material challenged as defamatory should be reduced (in line with the protection of free speech) and that site owners should be encouraged to moderate content written by its users in a way which balances free expression and the protection of reputation.

Regarding the procedure for taking down material, the committee distinguishes between material which is identifiable in terms of authorship and that which is not. With identifiable material, the committee suggests that once a complaint is received about alleged defamation, the host or service provider should publish a notice of complaint alongside that material, but is not required to remove the offending material – protecting free speech.

The person making the complaint can also apply to a court for a take-down order, if they wish. Regarding unidentified material, the recommendation is that any such material should be taken down by the host or service provider on receiving a complaint, unless the author responds to a request to identify themselves, in which case the procedure for identifiable material should be followed.

If the host or service provider believes that there are significant public interest reasons that justify publishing the unidentified material, it can apply to a judge for an exemption from take-down, and secure a “leave-up” order. If hosts and service providers comply with these rules, then they should not be liable for defamation. The committee believes that this procedure should apply equally to online sites that are moderated and those that are not. The committee also makes its wish known, hoping that ‘over time, people will pay less attention to and take less notice of material which is anonymous’.

In as much as the situation for potentially defamatory online content should be clarified, these developments are welcome. Nevertheless, two criticisms can be made of the approach so far.

Firstly, the maintenance of anonymity seems to be characterised by the Parliamentary Committee’s report as undesirable – beyond the specific situation of defamatory comments made by an anonymous internet user. This perceived undesirability of anonymity could have a chilling effect on free expression online, particularly with the increasing government and corporate surveillance of the medium, not all of which is desirable or even legal.

Secondly, the Parliamentary Committee’s report emphatically makes no distinction between different kinds of online ‘secondary publishers’, especially in terms of the procedure to be followed for dealing with potentially defamatory material. There are many different types of ‘secondary publisher’ on the internet, ranging from large, well-organised corporations (e.g. social networking sites) to small, personal, non-profit operations (e.g. a personal blog), and they may well have different capacities with which to fulfill regulatory obligations. However, this subtlety has been overlooked, or indeed not at all taken into account by the Parliamentary Committee’s report, which characterises these internet content intermediaries as a monolithic block.

[1] http://www.justice.gov.uk/consultations/draft-defamation-bill.htm

[2] http://www.publications.parliament.uk/pa/jt201012/jtselect/jtdefam/203/20302.htm

Angela Daly is a 3nd year PhD researcher at the European University Institute (EUI) in Florence, Italy, working on a thesis entitled ‘corporate dominance of the Internet’. She is currently a visiting researcher at the Dipartimento Cesare Beccaria at the Universita degli Studi di Milano, and is also managing the New Media sub-project of the EUI’s MEDIADEM activities.

We made an application, via the Judicial Press Office, the day before, to cover the court case live from the court room, as we understood that recent changes to court protocol had allowed this. They in-turn forwarded it to the judge.

Immediate response – No
During the opening of the court hearing, Judge Pearl raised the subject and announced that his immediate response was “No”.

He felt that as recording or photos weren’t allowed, the same reasoning should be applied to live tweeting. The details were “contemporaneous” in his view.

He then asked both the applicant and defence teams what their views were.

Legal teams asked
The legal team on the Applicant decided not to pursue it (possibly out of a desire not to irritate the judge – some what understandable).

The defence barrister said he agreed with the reasoning of the judge and the applicant team, not adding anything more.

One quote I wrote down was that details might “come out in a misleading way”.

“Only short”
The judge said that, as the court case was “only short” (projected to take only 1.5 hours, it took over three and a half hours in the end), live coverage wasn’t needed, so it “could be reported after”.

I asked the judge if it would be OK to send a quick update, alerting VB readers that I wouldn’t be able to cover it live, to which he said no.

While I left the court to do the update, I later heard that a reporter for the Press Association, John Aston, addressed the court, pointing out to the judge that the Julian Assange extradition hearings case had allowed live tweeting. I was told that this was news to Judge Pearl.

Lord Chief Justice Interim guidance
Back at the end of last year, Lord Judge, The Lord Chief Justice addressed this very subject through an Interim practice guidance, as reported in a number of places, including Journalism.co.uk on 20 December 2010:

The Interim practice guidance says

10. There is no statutory prohibition on the use of live text-based communications in open court. But before such use is permitted, the court must be satisfied that its use does not pose a danger of interference to the proper administration of justice in the individual case.

11. Subject to this consideration, the use of an unobtrusive, hand held, virtually silent piece of modern equipment for the purposes of simultaneous reporting of proceedings to the outside world as they unfold in court is generally unlikely to interfere with the proper administration of justice.

At the end of point 13 he says, “The most obvious purpose of permitting the use of live, text-based communications would be to enable the media to produce fair and accurate reports of the proceedings.”

How can we alert judges?
We’re very aware that judges have a lot to keep on top of on a daily basis, so wonder if there’s a simple way for them to be made aware of the current thinking on live court coverage?

This article first appeared on Ventnor Blog here.

Meeja Law comment: As VB reports this issue came up during Julian Assange’s appeal for bail in December 2010. As Meeja Law reported at the time, it was not the first instance of live tweeting from court although it might have been the first time a newspaper was granted specific permission. Ben Kendall (@benjkendall) crime reporter for the Eastern Daily Press in Norfolk had tweeted from court before, albeit without additional permission from the judge, in August 2010.

There is an increasing range of legislation that can criminalise journalists.

The alleged law-breaking by journalists at the News of the World is indefensible. But Parliament has made it almost impossible for journalists to operate effectively without falling foul of legislation.

So when the prime minister David Cameron refers to a “free and vibrant media, completely unafraid to challenge authority”, but one that “operates within the law”, he must realise that the second part of that statement makes the first part impossible.

Here’s some other recent legislation that is already being used to harass and potentially criminalise photographers:

1. The Serious Organised Crime and Police Act contains a new offence of “harassment intended to deter lawful activities” – ie, harassment that is intended to persuade someone to do something he is not obliged to do, or to stop him from doing something he is legally entitled to do.

This measure can be used to prevent photographers “camping” outside people’s homes and prevent a photographer from door-stepping someone – either they, or even one of their neighbours, can claim that the presence of the press was causing them alarm or distress.

The same act also gives police the power to order someone to leave the area around someone’s house, and not to return for up to three months.

2. The Protection from Harassment Act 1997 says that a person must not pursue a course of conduct that amounts to harassment (alarming the person or causing them distress) of someone else and which he knows or ought to know amounts to harassment.

Photographers are vulnerable here – but the action must have occurred at least twice. The prosecution does not have to prove intent, as with many other offences – only that the conduct occurred in circumstances where a reasonable person would have realised that harassment would result.

3. A photographer could be arrested without a warrant and could have his property searched. He could be fined or jailed and vulnerable to a civil action for damages.

4. Photographers are also vulnerable under the Public Order Act 1986, if they use threatening, abusive or insulting words of behaviour, or disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress.

5. The Criminal Justice and Public Order Act 1994 also established a new offence of intentional harassment – using threatening, abusive or insulting behaviour, intending to cause a person harassment, alarm or distress.

6. Police sometimes use the Highways Act 1980 to prevent “willful obstruction of the free passage along the highway” to arrest photographers who are getting in the way at a demonstration or major incident.

7. If a photographer on public land persists in taking photos after a policeman tells him to stop, or argues with the policeman, he can be arrested under the Police Act 1964 for obstructing an officer in the execution of his duty.

8. Photographers / photojournalists can be stopped and searched by police using anti-terrorism legislation, under the Terrorism Act 2000, if an officer suspects the photos are part of hostile terrorism reconnaissance. The problem for the media is that officers do not have to suspect the photographer is a terrorist. This allows police to claim a search is necessary to find out if the images are part of hostile terrorism reconnaissance.

9. Under the same act, a journalist can be prosecuted for eliciting, or publishing information about someone who is, or has been, a member of the Armed Forces, UK Intelligence Services, or a police officer – if the information could be useful to someone preparing or committing an act of terrorism.

10. Section 76 of the Counter-Terrorism Act 2008 can make it a criminal offence to take photographs of police officers. Under S76, eliciting, publishing or communicating information on members of the Armed Forces, Intelligence Services and police officers which is “likely to be useful to a person committing or preparing an act of terrorism” will be an offence carrying a maximum jail term of 10 years.

11. The police have no powers to stop a photographer taking shots in a public place. But this hasn’t stopped them – and others – using the Prevention of Terrorism Act 2000 harass and intimidate photographers and journalists – see, for example this article and the links below:

• http://www.wired.com/gadgetlab/2008/04/videoclueless/
• http://www.guardian.co.uk/uk/2010/feb/21/photographer-films-anti-terror-arrest
• http://www.bjp-online.com/british-journal-of-photography/news/1644048/jail-photographing-police

… and too many others to list [other examples can be found here].

There’s plenty more legislation like this. The media has never faced such an onslaught of restrictive legislation in its history, or a police force who enthusiastically use, and misuse, the powers that Parliament has given them.

I don’t defend what the NOTW reporters did.

But I hope Lord Justice Leveson also uses his judicial inquiry to investigate why there is such a frighteing range of legislation that inhibits good journalism. And why the police, sometimes illegally, enforce it.

Cleland Thom runs the CTJT e-college and is @ClelandthomCTJT on Twitter.

Guest post: The future of regulation as seen by Barry Turner, senior lecturer in media law, the Centre for Broadcasting and Journalism, Nottingham Trent University

At last Friday’s dramatic press conference the Prime Minister announced that two inquiries would be set up to examine the biggest scandal in British journalism for decades. David Cameron described the deliberate hacking into the phones of private individuals as despicable and called for a massive overhaul of the relationship between the media and politicians and for a close scrutiny of another relationship between that of the media and the police.

The PM found that this scandal had come about in the main because of lack of regulation of the press, meaning the tabloid print media. In his statement to the press, Mr Cameron did acknowledge that this problem ran much deeper and even – very unusually for a politician – accepted some of the blame for himself and his colleagues from all parties. Nevertheless the problem was mainly presented as a fault in our press regulation and as the specific fault of rogue journalists and editors and consequently one that needed a review of press regulation.

This is of course not the first time that senior politicians have called for tighter control on the tabloids; in particular in 1989, David Mellor, Conservative cabinet minister, declared that the tabloids were reckless, too powerful and in need of more regulation; they were, he warned, “drinking at the last-chance saloon”.

It is not just those who chose to be in the public eye who have been attacked; this scandal is much more insidious. As usual the focus is deflected to the ‘symptom of the disease’ not the cause. Press regulation in Britain is already a mess but not because journalists often upset politicians. We have the somewhat absurd distinction of having two sets of media regulation: one for print and one for broadcast. Neither work very well – as might be expected of a set of rules largely drawn up from a morality of a long gone age.

Our current regulatory structure distinguishes artificially between journalists who work in print and those who work in broadcast, as if there were two forms of journalism rather than two platforms on which it is disseminated. Our current print regulator, if such a term can be used for the PCC, is a toothless talking shop that gives schoolmasterly lectures on morality to journalists who over step the mark, but what is the mark? Our broadcast media is regulated by Ofcom, a bureaucratic anachronism unfit for modern broadcast media in a democracy.

Both current regulators work from a baseline of public morals and 19th century models of fairness. This has led, in the case of broadcast journalism, to an absurd situation in which  impartiality has been translated into the most simplistic form of ‘balance’, with newspapers subjected to outdated and frankly quaint ideas of ‘decency’ in the name of regulation.

Mr Cameron and many others are now calling for more regulation as if any of the current models or variants of them would have had any effect on this current scandal. This is a typical British approach to dealing with a problem: rules have been broken so let’s have more rules.

On the surface this current scandal is about the criminal acts of a few journalists and editors, criminal acts that would hardly have been affected by any kind of ‘regulations’. This criminal behaviour is already subject to sanctions that no regulator could ever impose and since the criminal law itself has failed to deter the behaviour it is difficult to see how a book of rules will.

Beneath the surface of the hacking scandal is a far more disturbing state of affairs. For decades politicians and public officials have had a far from healthy relationship with the press. Politicians are frightened of the press and seek favour with it for reasons that should make us all question their integrity and moral courage. It is this relationship that needs to be regulated and to do that the politicians need closer regulation.

It is hardly surprising that giant media corporations believe that they are bombproof when it comes to the law. When the legislators themselves sycophantically curry favour with the owners of giant corporations it is obvious that it will come at a price. Favours need to be re-paid so if you don’t want to grant them don’t ask for them.

What can we expect now? It is early days yet and we await the public inquiry, but David Cameron has already alluded to the possible models that could be put in place. The obvious one is to turn the PCC into a proper regulatory body independent of the newspapers and government. This would give whatever body succeeds the PCC the ability of impose sanctions on an offending newspapers and individual journalists and editors. This model would resemble the current strictures placed on the broadcast media under Ofcom. The Ofcom model is itself flawed as it is based on the faulty concept of balanced reporting and paternalistic protection from offence to public decency.

This model represents a threat to more than 350 years of newspaper tradition in that it would force editors into the ridiculous position of incorporating ‘balance’ into the stories they published. British newspapers have a tradition of partisanship and it is the reason people buy them. Most of our newspapers take a position politically and morally and that is why their readers find them attractive. To introduce the faulty concept of balance will  remove the heart of the printed press and prevent readers choosing whatever political and moral position they wish to read.

To wreck centuries old traditions of the press in order to prevent the type of scandal we are now witnessing is throwing the baby out with the bath water on a grand scale. It is akin to attempting to prevent stealing by banning the ownership of property.

Another ‘regulator’ mooted by Ed Milliband, leader of the opposition, is to introduce a GMC or Law Society based professional practice model. This model too is flawed. The GMC and Law Society, more correctly the Solicitors Regulatory Authority, do not conduct their business publicly. They act as investigator, judge and jury and are hidebound with anachronistic practices and a lack of transparency, precisely the problem with the current regulators of our media.

Why do we need new press regulation at all? Since this scandal began with the arrest and eventual imprisonment of Clive Goodman and a private investigator for tapping phones it is clear that these matters are of a criminal nature and not one of press regulation. We have adequate and well seasoned law in place to deal with this type of criminal activity so it is the failure of the criminal law that should be in the spotlight here not the failure of press regulation. This affair is not about journalists or editors it is about corruption in public office. The journalists and editors are playing on a much wider stage than simply that of modern journalism.

David Cameron did accept in his comments to Friday’s press conference that the problem lies with the dangerous relationships that have developed between politicians and media corporations. He accepted that practices have allowed this scandal for too long; and that the members’ expenses debacle was well known in the corridors of power and disgracefully tolerated before it was exposed. He accepted that such practices represented a threat to our democracy; where legislators make our laws and govern us, police enforce those laws, and the media informs us about how we are governed. These three sectors have developed an unhealthy and corrupt relationship based on kickbacks and deals entirely against the public interest.

There is now a danger that attention will be directly focussed on the press and away from the other two key players in this disgraceful affair – the police and politicians. The hacking is a symptom of the disease not the disease itself. Any changes to regulation of the media that follow these inquiries must be aimed at the culture that facilitated the corrupt practices in the first place and clearly regulating the messenger while allowing unhealthy relationships between the media companies, politicians and the police will do nothing to prevent further outrages in future. For a lighter illustration, see below.

Robin Hood and his merry phones…

Imagine the scene, a new gang of thieves have holed up in Sherwood Forest and are frequently robbing the rich, who travel through there, and giving the money to the poor. The Government is appalled by this and especially so when they find out that some of the Sheriff’s men and one or two of Prince John’s advisors are in the pay of this group of outlaws [photo: Curt on Flickr].

“We must do something about this”, howl the senior courtiers from all parties, “yes, of course we know this has always happened and that it happened under our noses both in and out of government but now we must stop it”.

“I know what we need to do,” says Sir Guy of Gisburne, “to stop this pack of villains we need better regulation”.

The parties all get together and devise a fiendish plan to prevent the outlaws from continuing with their nefarious activities. Strong regulation with real teeth is introduced and from now on robbing the rich is not allowed.

To give added impetus, in future no one will be able to give to the poor without a licence from ‘Ofthieve’, the new regulator.

The practice of wearing Lincoln Green within a national park must be balanced by more of the outlaws wearing Scarlet; a privacy law will be introduced preventing outlaws from inquiring how much the Lord Abbot has in his saddlebags; and the overbearing influence of Christianity – caused in part by the over-representation of monks within outlaw gangs -  must be balanced by representatives from all faiths.

The Sheriff, Prince John and Sir Guy all sigh with relief and merry England can live happily ever after, knowing that criminals are always ready to abide by the decisions of regulators…

Torture is how the Sun sums up what the family of Millie Dowler were put through during the trial of Levi Bellfield.

The story is aimed at the treatment of the family by defence lawyers but the media also adds to the pain of families of murder victims by, in the interests of balance, having to cover defence cases which try to blacken the name of those who have been murdered.

I covered murder cases when I worked for a news agency and an evening paper. I remember two cases involving the murders of a 12-year-old boy and a teenage girl who were both sexually attacked.

The defence put forward claims that the victims had agreed to sex and were murdered by other people. It was the only possible defence because there was strong forensic evidence linking the accused to the sex attacks on the murder victims.

It led to lurid headlines saying the girl or boy had “agreed to sex”. It has always troubled me that the newspaper reports based on the spurious defence claims added to the distress of the families of the murdered children.

In both cases, police said afterwards that there was not a shred of evidence to back up the claims put forward by the defence.

It’s not the media’s fault. Journalists are taught court reports are privileged only if you give a balanced report of a court case. But it doesn’t make it right.

This post originally appeared on Jon Slattery’s blog. Jon is a freelance journalist based in London and was deputy editor of Press Gazette, the journalists’ magazine, from 1993 until 2006.