Regulating press freedom in the UK and the constitutional response to the phone hacking scandal

Introduction

(1) Outline of the Hackgate affair.

(2) Leveson Inquiry and its recommendations.

(3) The regulatory position of the print media before and since the judicial inquiry.

(4) The constitutional role of Parliament and its committees plus the contribution of the press in uncovering the original scandal.

A brief evaluation of the outcome is attempted with particular reference to the state of play re press regulation.

Phone hacking scandal

A police inquiry initiated in 2005 revealed that private investigators had been used repeatedly by the Sunday newspaper the News of the World to hack mobile phones, including the phone of Prince William, other celebrities and victims of serious crime, to obtain scandalous or salacious stories.

In January 2007 the Royal Affairs editor of the News of the World Clive Goodman and Glenn Mulcaire, a private investigator employed by the paper, were convicted for conspiring to intercept communications. They were sentenced to short terms of imprisonment.

By July 2009 it became apparent that senior staff at the News of the World were aware of the use of illegally accessed messages from mobile phones between 2003 and 2007. Moreover, there had been attempts to minimise the responsibility of editors, chief executives and owners by a carefully orchestrated cover up.

Parliament had been grossly misled in the evidence submitted to it regarding the extent of these illegal practices. The relevant committees using their watchdog function were intent on exposing a blatant disregard by News International of their duty under the code.

Williams calls to Kate hacked

Victims family believe murder victim still alive because of phone tap

Andy Coulson N of W editor later PM’s press secretary imprisoned for authorising hacking

What did senior executives know?

MP Commissioner UKs senior policeman resigns

Judicial Inquiry under LJ Leveson

Constitutional protection of free speech

From the perspective of the protection of rights under the uncodified UK constitution:

‘[It] is … intrinsically important: [Free speech] is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives.

First, it promotes self-fulfilment of individuals in society.

Secondly, quoting Holmes “the best test of truth is the power of thought to get itself accepted in the competition of the market”.

Thirdly, freedom of expression is the lifeblood of democracy. The free flow of information and ideas informs political debate.’ Sir John Donaldson in AG v Guardian Newspapers (1987).

Resistance to prior restraint

The fourth pillar of freedom of speech in Britain is the principle that the Government has no direct control over the press’ (Robertson and Nichol).

It is often said that the media is free to publish and be damned.

In practice, this means that an injunction will be needed by government, or any other litigant, in order to prevent publication.

HRA 1998 incorporates ECHR rights including free speech.

No clear restrictions relating to the ownership of newspapers and print media. Circulation imperative and political motives of proprietors calls into question the virtuous role of the press in exposing wrongdoing?

Official Secrets Act and FOI set certain limits but what about when the press go beyond the limits and abuse their position.

Scope of the Judicial Inquiry under LJ Leveson

‘The culture, practices and ethics of the press; its relationship with the police; the failure of the current system of regulation; the contacts made, and discussions had, between national newspapers and politicians; why previous warnings about press conduct were not heeded; and the issue of cross-media ownership’.

Set up for political reasons to divert attention away from political controversy.

The Inquiry called before it all the main players, including the PM, leading politicians, media bosses, journalists.

But was such an expensive inquiry justified given that much of the evidence had already been exposed.

UK Press regulation

Strong reliance on unenforceable codes of practice signed up to be editors of newspapers back in 1993.

“A balance is needed between the right of free speech and the right to privacy. The Committee’s view is that at present that necessary balance does not exist, and in this Report it recommends action to achieve it. The Committee does not believe that this balance can or should be achieved by legislation which imprisons the press in a cage of legal restraint, and for that reason rejects those proposals in the recent report by Sir David Calcutt which could create such a cage…”

PCC comprised of representatives nominated by press and no powers.

“The fundamental problem is that the PCC, despite having held itself out as a regulator, and thereby raising expectations, is not actually a regulator at all. In reality it is a complaints handling body.”

New self-regulation body was recommended by Leveson Inquiry

Independent of serving editors, government and business.

The nature of the abuse

Press complaints machinery was exposed as inadequate faced with the scale of the wrong doing. Obvious shortcomings in the PCC as an oversight body.

Critical questions were asked of the Metropolitan Police because there had been inadequate criminal investigation of criminal wrongdoing.

Concentration of media ownership in very few hands recognised as a controversial issue. Tendency by politicians to court the print media places them in a special position.

Insidiousness in the way the directors and owners were associated in a social circle with the PM, other senior politicians and the Metropolitan Police Commissioner (forced to resign together with other senior officers despite no proof of direct influence).

Parliament was to play key role in drawing attention to the scale of the problem and it was through the departmental select committees.

Leveson Requirements of new regulatory body

• The Chair and board members of the body should be independent of the press and Government and should be appointed by an independent appointment panel.

• The membership of the new body should be open to all publishers on fair, reasonable and non-discriminatory terms.

• New body to formulate a revised code. Real harm caused to real people by privacy invading expression without unduly affecting press partisan ship. But how will the task of defining public interest be approached by a regulator?

• The new system should be funded by the media industry by agreement with the board of the new regulator.

• The new regulator should have the power to direct appropriate corrections and apologies and impose sanctions of up to 1 per cent of turnover with a maximum of £1 million.

• The new body should establish a whistle-blowing hotline for journalists who feel they are being asked to do things which are contrary to the Code.

• Newspapers required to publish compliance reports.

Independent Press Standards Organisation (IPSO)

• Set up in September 2014 by newspaper owners to replace the Press Complaints Commission and promote the highest professional standards in journalism.

• New body with new complaints procedure chaired by former senior judge Sir Alan Moses.

• Editors code of practice offers individuals protection from ‘intimidation, harassment or persistent pursuit’.

• Rulings published on website. • Does not seek to gain recognition under the Royal Charter which was backed

by Parliament under the Regulatory Reform Act 2013 and which does not involve any prior constraint.

• Incentives under the Crimes and Courts Act 2013 for publishers to sign up but Guardian, Independent and Financial Times have boycotted IPSO.

• Fails to comply with Leveson criteria in crucial respects. Press Regulation: Where are we now? House of Lords Select Committee on Communication, March 2015.

Independent Monitor of the Press (IMPRESS)

IMPRESS Project is building support for more robust independent self-regulation. Donors include authors, journalists and philanthropists such as Michael Frayn, Terry Gilliam, David Hare, Ian McEwan, J.K. Rowling, William Sieghart and Polly Toynbee. Independent of politicians and owners. Impress may trigger government sanctions that newspapers have so far tried to avoid.

Impress will encourage the highest ethical standards in journalism whilst safeguarding the fundamental right to freedom of expression. Independent self-regulation which complies with Leveson’s criteria.

Complaint handling function in relation to breaches of the standards code. IMPRESS will provide a fair, quick and inquisitorial arbitration service for civil legal claims.

Own initiative investigations by a specialist team where criminality is suspected.

Whistleblowers hotline.

Impress is for journalists who value integrity and independence.

Parliamentary oversight: Departmental select committees

• Introduced for the first time in 1979 to oversee executive departments rather than undertake legislative scrutiny.

• Set up at the beginning of each parliamentary session following a general election.

• Membership now selected by back bench MP not whips to make them more independent but composition reflects party standings in House of Commons.

• Able to pursue investigations in a less partisan manner. • Elect their own chair who receives extra payment as chair. • Committee sets its own agenda: in this case the level of public concern

prompted the Culture, Media and Sport Committee and the Home Affairs Committee to investigate and report. Hunting in packs.

• Witnesses summoned and interrogated before the committee in televised sessions. Public focus amplifies role.

• Dialogue between the committee and government through responses to reports.

• Limited research back up compared to US counterparts.

Investigations and Reports

• The Culture Committee reported that: ‘Despite the professed willingness of witnesses from News International to assist the Committee, the company has continued to downplay the involvement of its employees in phone-hacking by failing to release to the Committee documents that would have helped to expose the truth.’

• The Home Affairs Select Committee which shadows the Home Office (responsible also for the Metropolitan Police) became involved over the lack of explanation for the failure of the police to investigate many serious breaches in the law related to hacking.

• Evidence given before the committee brought to public attention close social contacts between News International personnel and high ranking police officers and payments made to police officers to gain access to investigations.

Conclusion

• Certain irony that exposure by a newspaper journalist triggered the events leading to the exposure of the original scandal which assumed prime billing as a national news item.

• The capacity of a free press to dig deep and investigate the practices within the press itself was essential. An overly protective privacy law supported by an intrusive regulatory body might well have inhibited this very process.

• However, IPSO has too much in common with the PCC, has failed to adopt Leveson approach and is not regarded with much confidence by many respected media commentators.

• At least the parliamentary and judicial mechanisms were able to uncover a catalogue of abuses. The News of the Word was closed down, a number of journalists and editors were successfully prosecuted, senior police officers forced to resign but the big fish directing multi-national media enterprises were able to escape the net.