Press standards, privacy and libel - Culture, Media and Sport Committee Contents

Examination of Witnesses (Question Numbers 440-459)


21 APRIL 2009

  Q440  Helen Southworth: I was not saying it to the exclusion of.

  Mr Greenslade: You want more journalists on there?

  Q441  Helen Southworth: I am asking you.

  Mr Greenslade: No, I do not think so. I do not know where you would select your journalists from but I think it would lead to the sorting out of what we might call petty, internal squabbles.

  Mr Davies: I think there are two potential roles here. If you say: could the PCC do with some professional journalists to go out and investigate what has gone wrong with a particular story? I think there could be some virtue in that, ex-journalists, people who actually know how other hacks behave. As far as I know Tim Toulmin has never written a word in anger. He is not a journalist; he does not understand the tricks we get up to. I think at that kind of investigative level it could be really helpful, but if you look at the Commission I do not think there should be any professional journalists or editors on that Commission. They proudly say that they have a majority or lay people but if you compare that to the position of a jury, if you were told, "Well, here we have the 12 jurors; five of the 12 share commercial, professional interests with the defendant on trial" you would say, "We can't have that, even if seven of them are independent". The entire Commission should be made up of lay people. It should not be weighted with people who produce the same newspapers that are coming up to be judged. That is wrong.

  Mr Greenslade: I disagree because I think that the important feature of the Commission is that editors sit in judgment on themselves and when they do adjudicate it does meant that the whole of the industry stands behind it. One of the differences between the adjudications carried out by the PCC and those carried out previously by the Press Council is that there has never been any public demur from those decisions. There are too few of them as I have mentioned, but those that are made are never challenged again in the newspapers which are forced to carry the adjudications. By the way, they have improved slightly on the positioning of those adjudications as well. That is one thing Meyer did improve.

  Q442  Helen Southworth: In terms of the structure I think you have both expressed concerns about the independent distance of the PCC. How would you see the structure being improved? Is there a way that the structure could be enhanced?

  Mr Greenslade: First of all I think there should be a totally independent appointments commission and they should appoint every position in the PCC. I think the editors could be self-selected from within the industry and they do it on a rota basis anyway; that is fine and I am quite happy about that. I think the appointments commission could even be appointed, dare I say it, by politicians. At least it should be so totally independent from the industry that we can feel that the charter commissioner and the compliance commissioner and all the members of the commission are appointed with absolutely no influence from the industry itself. That would be a major improvement. In terms of the rest of the structure I think it is under-funded and this is something about which I agree totally with Christopher Meyer. It is under-funded and part of that funding should, as Nick suggests, go into investigating cases and being more proactive.

  Mr Davies: It is not just a question of who appoints the people who are running it; it is also who defines the rules according to which it runs. Why do they have a rule which says, "If a complaint comes from a third party we are bound to dismiss it"? This happened to me. I wrote a story about a school where the deputy head teacher came out rather badly. Two parents complained to the PCC. It was a real nuisance. I had to spend a lot of time preparing a response, and the next thing I heard it was kicked into touch. Why? Because the deputy head teacher himself had not complained. Where is the sense in that? If my story is wrong we should have to correct it wherever the complaint comes from, but they have written this rule. They have written the rule that if you are suing you cannot come to the PCC. There are thousands and thousands of complaints which they reject on technical grounds. I would say the first thing is to get somebody independent to overhaul the rules on which they are running as well as the appointment of independent people so that you have an organisation which is structurally more likely to be honest with its complainants.

  Q443  Chairman: On Thursday our next witness in this inquiry is the chairman of the PCC Code Committee who also happens to be the editor of the Daily Mail, Mr Dacre. It has been said that one of the most serious conflicts of interest is the fact that the editor of a newspaper which has a reputation for occasionally testing the Code should also be in charge of the Code. Would you agree with that?

  Mr Davies: I did an analysis of all the occasions on which adjudications have actually taken place and drew up a sort of league table to see which newspaper had most frequently been found to have breached the PCC code and the Daily Mail are way out ahead of the others.

  Q444  Chairman: Is that in your book?

  Mr Davies: Yes, in the Daily Mail chapter.

  Mr Greenslade: I am altogether more relaxed about Mr Dacre being head of the Code Committee because in fact I do not have that much of a problem with the Code. The editor of the Guardian and other responsible journalists are there too. Obviously the code can, as it has been, changed over time. The Code is not the problem; it is the application of the Code and the administration by the Press Complaints Commission of that Code itself. I think the Code Committee is a bit of a red herring.

  Mr Davies: I agree with that, but where is the Code Committee saying that you have to stop using private investigators to get illegal access to—

  Mr Greenslade: That is not the Code Committee's job.

  Mr Davies: It needs a clause in there to say that this is a disciplinary offence. Paul Dacre, in his speech to the Society of Editors last November, defended this practice and actually cited among the things which they should be able to access are not just your driving licence details but medical records. That surely is private but he is saying that we should be allowed to get access to that. I thought it was particularly alarming, if you read that speech, that he confessed publicly what we had suspected, that the reason that the Data Protection Act was not give a custodial sentence in the Criminal Justice Bill last year was because Paul Dacre, Murdoch MacLennan and Les Hinton went in to see Gordon Brown and stopped him doing it. That is a rather extraordinary situation. It is as if you allow burglars to go in and re-write the legislation on burglary. These are the guys who are breaking the law but they are being allowed to define its penalties.

  Q445  Rosemary McKenna: It is interesting that the man who wants access to our medical records is so violently opposed to ID cards.

  Mr Davies: Also, when he goes into hospital to have operations on his heart, there is always a message sent round Fleet Street saying, "Mr Dacre's in hospital, please do not report it". Medical records are supposed to be plundered by Harry Hack with beer on his breath and egg on his tie. It is wrong but they are not doing anything about it and that continues despite Motorman. All that has happened is that they have got a little bit more careful about it. I actually got to know that network of private investigators who were exposed in Motorman. Years after that I was in the office of one of them and he was taking phone calls from newspapers while I was there. It has not stopped; it has just got a bit more careful. It had got so casual that every reporter in the newsroom was allowed to ring up and commission illegal access to confidential information, now they have pulled it back so that you have to get the news editor to do it or the news desk's permission. It is still going on and it is against the law.

  Q446  Paul Farrelly: Do you think the PCC missed a trick with its own standing reputation in not summoning Mr Coulson?

  Mr Greenslade: I wrote at the time and have maintained ever since that the Goodman affair was a very, very black moment in the history of the PCC. This man was jailed for breaking the law. His editor immediately resigned but there were huge questions to ask about the culture of the News of the World newsroom which only the man in charge of that newsroom could answer. When I challenged the PCC about why they had failed to call Mr Coulson they said that he was no longer a member of the press. That seems to me to be a complete abnegation of the responsibilities of the PCC for the public good. In other words, to use a phrase Nick has already used, it was getting off with a technicality.

  Mr Davies: If you say to Coulson, "Come and give evidence even though you are no longer an editor" and if he says, "No" then that is an interesting tactical failure on his part. It is not just the editor of the paper; what about the managing editor? Why not call Stuart Kuttner, the managing editor of the News of the World, who has been there for years and who has a special responsibility for contracts and money? Why not call him to give evidence? There was a real will on the part of the PCC to avoid uncovering the truth about phone hacking.

  Q447  Chairman: We did do an investigation both into Motorman and into Goodman so I do not want to revisit old ground too much.

  Mr Davies: It is what it tells you about the PCC.

  Q448  Rosemary McKenna: There is no obligation on journalists to let people know that they are going to be printing stories about them and invading their privacy. I am very concerned about ordinary people. Would it help to have a requirement for a journalist to really check his story or to prior notify the people they were going to be the subject of a story? Would that help and how could it be done?

  Mr Davies: It is a problem because the journalist's instinct is to go to the other side to check because you do not want to get caught out with some killer fact then your story is wrong. However, if you are doing a story which could be deemed to be confidential or—which is slightly different but similar—private, you are very, very reluctant to go to the other side because they can injunct you and these injunctions can sit there for months, particularly on breach of confidence. There is a problem there. I do not want Neville Thurlbeck from the News of the World in my bedroom filming me making love. I do not want it to happen. It is wrong. They should not have done it to Max Mosley.

  Q449  Chairman: Can I just interrupt you on that point? The argument put by Mosley who is very much in favour of this is that no judge will grant an injunction if there is a public interest. So actually if there is a serious story there then an injunction will not be a problem.

  Mr Davies: The trouble is that the courts have a history of being hostile to the journalists and we do not trust them. It is particularly difficult because nobody really knows what we mean by public interest. It is fuzzy. There are some cases which are clear but there are an awful lot that are fuzzy in the middle so you cannot be sure what outcome you are going to get. It makes me very nervous going anywhere near somebody who could possibly injunct me in order to check a story. I would rather find another mechanism.

  Q450  Rosemary McKenna: Is there a mechanism?

  Mr Greenslade: I was surprised—although not that surprised—by Max Mosley's view that he has greater faith in judges because he is a gentleman who came up through the law. The idea that judges would be better at making these decisions than editors is not absolutely proved. I also imagine that if every time you did a story you had to go to court to put it in front of a judge, think of the extra costs involved in that and that would have a gradual chilling effect on journalism itself. I think responsible journalism means that in most cases you would want to put to the victim the other side; you would want to go to them. However, there are occasions—as Nick has mentioned—where you would not. To go back to my dear, late unlamented employer Robert Maxwell, it is definitely the case that people like Robert Maxwell would have tied you up in the courts for ever. He managed to make life extremely difficult for his biographer Tom Bower for that very reason. In most cases I think we should do it but in some cases you should not and indeed it would be counter productive so to do.

  Mr Davies: The only other mechanism I can think of and I hesitate to suggest it, is the prospect of some ghastly penalty. So if I publish a story that breaches your privacy and I have not approached you before publication because I do not want you to injunct me, if the law permitted you then to say, "Okay, I'm going to go to court and if the court says that you in fact you did breach my privacy then there is whopping great penalty going to descend on your head or the newspaper's head". In anticipating that I would be much more careful and the News of the World would be much more careful.

  Rosemary McKenna: Ordinary people do not have the means to take action and to go to court.

  Q451  Chairman: As I understand it that is roughly what Mosley was proposing, that if you fail then it becomes an additional cause in any subsequent damages. Prior notification is a requirement and if you do not—

  Mr Greenslade: He would like to see that enshrined in law.

  Mr Davies: I would like to see prior notification out because I do think there are problems with that. Maxwell is a very good example of someone who did injunct and suppress the story, but you could put something else out there which would restrain the feral end of Fleet Street. The feral end of Fleet Street is out of control.

  Q452  Rosemary McKenna: There is in the way they are operating in terms of every aspect of society from celebrity right through government, right through the police. I do not know whether it is the death throws of the journalism profession because they see that the newspapers are failing so badly. Having spent all my life reading newspapers—that is a long time—I see such a deterioration in standards.

  Mr Davies: There is a bullying and an aggression and a constant poisoning of public debate. There is an irony here. If you go back to the 1970s Fleet Street were all attacking the trade union movement because they were this unelected, undemocratic, over-powerful group and they insisted in taking powers away from the trade union. Now who plays that role? The worst end of Fleet Street is now exactly the same: unelected, undemocratic, over-powerful, throwing its weight around and causing damage.

  Q453  Rosemary McKenna: There are no sanctions.

  Mr Davies: No, just the irony of them stepping in and filling the gap made by the trades union they used to attack.

  Q454  Paul Farrelly: Max Mosley told us that not only did they not speak to him beforehand—presumably because they got him bang to rights in their view—but they went out of their way to publish a dummy edition. That may have the effect of not allowing him to injunct, but to my mind that is a classic spoiler to stop the opposition—

  Mr Greenslade: He did not understand about the culture of competitive newspapers. He made a slight error; I was sitting back here and I wish I had leant forward to correct him on that. The spoof edition was simple to ensure they kept the story; it had nothing to do with avoiding an injunction.

  Q455  Chairman: Do you not think it was both?

  Mr Greenslade: No, I do not really. Even if he picked up an edition say at seven o'clock in the evening, the chances of him finding a duty judge to prevent the rest of the run at that stage would have been very minimal indeed. As we know that he did not pick up a copy until the next morning.

  Q456  Paul Farrelly: Is there not a problem in enshrining primary legislation in a statute? It adds to the armoury that people like Robert Maxwell try to use to prevent publication.

  Mr Davies: Yes, definitely. A few years ago I did a big thing in the Guardian about the tax avoidance strategies of the richest man in Britain. I spent months and months and months digging this out and it showed that he was earning a million pounds a day but paying less tax than me, which was quite offensive. I had a lot of legal advice and the libel lawyers were all saying, "You must go to this guy and check the story" but the lawyers who specialise in confidence were saying, "Don't go anywhere near him". If I had gone near him he would have injuncted us, the judge would have said, "Financial affairs are private, you cannot publish this story. If you have talked to people who once worked for him they have breached their contract of employment in talking to you." The story does not get out but that was the story that kicked off the whole public debate about non-domiciles which is important stuff.

  Q457  Paul Farrelly: Max Mosley says he would rather trust a judge than anybody else but there is no consistency. If we take the judgment that the video of Mosley can remain on the website but in the case of the Guardian documents that are already in the public domain were injuncted and had to be removed. Linklaters found a judgment in the early hours of the morning which of course ordinary people are not able to do.

  Mr Davies: The problems with prior notification actually go beyond this. It is not just privacy and confidentiality, there is the protection of sources. If I have to go to a central figure in a story some reasonable time before publication, there is a real risk of my sources being interfered with. When I was investigating the Daily Mail newsroom I did not go anywhere near Paul Dacre because he is a very aggressive man. It is difficult enough to get him people to talk without him threatening them. There is also the problem where you are writing a story about people who have professional PR advice and there is a real risk if you give them prior notification of your story. Alistair Campbell used to do this a lot, he would put out the story on his own terms with his own angle. There was a big example of that with Charles Kennedy where ITV decided to expose the fact that he had a problem with drinking and they went to him early in the day and said, "What do you want to say about this?" I think they were being a bit greedy actually, they wanted him on screen looking upset. However, as it was, Kennedy's PR people said, "Sod this, we're not going to let ITV attack you. We will hold a press conference at four o'clock in the afternoon, give the story to the opposition and change the angle. It is not `I have a problem with drink', it is `I am on top of the problem, it used to cause me trouble'." From a journalist's point of view, if you make it a legal requirement for prior notification you are causing a lot of problems so I think we have to look to another mechanism.

  Mr Greenslade: I concur absolutely with that because that is a central problem. Prior notification will lead to spinners getting their opportunity to ruin your exclusive story or ruin your story altogether.

  Mr Davies: If you change the angle you end up kind of misleading the public about what the story really is about.

  Q458  Paul Farrelly: Unless you have some statutory codification of what could be considered to be in the public interest you are allowing in each of these different areas judges to take them case by case.

  Mr Greenslade: You have put your finger on it. No-one has ever drafted a perfect definition of public interest. Nick has rightly pointed to its fuzziness. Even in the editor's code of practice it is a really wide definition that they have and it is impossible I think to encode the public interest which is, by the way, a moving feast.

  Q459  Chairman: You have a concern about the spinners getting to it if you have prior notification, but actually the newspapers themselves are frequently guilty of this in that they go to the person and say, "We are going to write this story but actually if you play ball with us we will do it this way". The classic was the women A, B and C who were approached by the News of the World who said, "We are going to name you, we are going to have your picture in the paper unless you cooperate and if you cooperate then mysteriously these things will not need to be mentioned".

  Mr Greenslade: It is a long term tactic of tabloids to go to the person when you do not have quite enough information that you need. The classic example is when, many, many years ago—I hate to bring his name into the public domain—the News of the World had some information about Frank Bough but only from a prostitute. They went to him and said, "We have got this information" and foolishly, instead of saying "Get lost" he was advised by a friend—a foolish friend—to do a deal in which he agreed to some of the stuff appearing and some being held back. That was a terrible mistake on his part but it is a classic method of operation in which you use prior notification in a way almost to blackmail.

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