Examination of Witnesses (Question Numbers
440-459)
MR NICK
DAVIES AND
MR ROY
GREENSLADE
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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