Summing up what we’ve learnt on Leveson, Murdoch and law

My loyal band of Twitterati may have noticed that I’ve been in Australia, where I gave a talk in two universities trying to sum up what we’ve learnt from the Leveson Inquiry. British readers of this blog might well want to stop right here because a good deal of the talk below will be familiar. There’s a very short version on the Australian-based The Conversation, a site which acts as a web publisher for opinion and analysis on public affairs by academics. But in case anyone wants to see the full text, here it is:

Phone-Hacking, the Leveson Inquiry and Rupert Murdoch

Public inquiries – often thought of as deliberate, careful, rational procedures – often provide examples of the operation of the Law of Unintended Consequences. They don’t always work out as their instigators hope or intend.

So it is with the Leveson Inquiry, now running most days of the week in London. The Inquiry is formally into the “culture, practice and ethics” of something quaintly called “the press”. The inquiry’s terms of reference are very broad indeed. They cover standards, accuracy, regulation and law, media plurality and ownership, relations with both the police and politicians.

The inquiry was set up by the Conservative-Liberal coalition government headed by David Cameron just after the phone-hacking scandal got too big to ignore. Mr Cameron is one party – the Metropolitan Police force is another – who cannot have enjoyed any of the Leveson Inquiry, which has not unrolled as it was expected to. The Inquiry has certainly done damage to Rupert Murdoch’s companies. But that was predictable. The collateral damage to politicians, policemen and private eyes has been much greater than expected – because what has been revealed by way of cronyism, mutual-back-scratching and blind eyes turned to plain wrongdoing has been far worse than people believed possible.

This moment – the moment, so to speak, when phone-hacking went platinum – turned on a murder case. The victim was called Milly Dowler. Milly was a 13-year-old schoolgirl who went missing in 2002 and was later found murdered. In the interval between her disappearance and the discovery of the body, her distraught parents naturally called Milly’s mobile. One day her mother was overjoyed to find that messages had been deleted from the phone’s voicemail; she assumed that Milly, still alive, was using the phone. In truth, by that time, Milly was already dead.

Just under a year ago, in July 2011, The Guardian reported that a private detective called Glen Mulcaire had been hacking Milly’s phone and had been deleting messages on the phone’s voicemail in order to create space for new messages which he could the pass on to the news editors at the News of the World. That story started a chain of consequences…

–       a firestorm of revulsion and protest,

–       the creation of the Leveson Inquiry,

–       the closure of the News of the World,

–       damage to the government’s credibility by revealing how close ministers had been to News International

–       the abandonment of News Corp’s bid for the remaining slice of BSkyB they didn’t already own,

–       the resignation of the Prime Minister’s press spokesman (who had been editor of the News of the World),

–       a great deal of the news media’s dirty linen was hung out to dry

–       and all this has added up to be a cathartic moment in British public life.

Since it later turned out that the allegation that Mulcaire deleted voicemail messages shouldn’t have been reported as fact – the police have admitted they just don’t know – a few voices have been heard saying that the Leveson Inquiry is an expensive waste of time. I think it’s been a good use of public money for public education and I think the issues it has exposed to the light would have caused a scandal sooner or later.

The inquiry has

–       lifted the lid on media behavior that most people don’t know about are shocked, puzzled and appalled to hear about

–       marked the end of one era of news media history. Historians will in future years mine the vast mound of evidence accumulated by Leveson because of the exceptionally rich picture it paints of a once-powerful print media brought low both by corrupted behaviour and by its inability to adjust to new realities.

–       shone a bright light on some very cosy and unsavoury relationships between editors, publishers, policemen and politicians.

American media pundits are fond of saying that “sunlight is the best disinfectant”. When it is the mainstream media being disinfected in this way, oddly enough you don’t hear journalists saying that. Since every single word at the inquiry is shown live and transcripts and statements are posted on the web, we might update that and say “Livestreaming is the best disinfectant.”

The fuss has died down as the inquiry has piled up a mountain of facts and opinions. Politicians have realised that the interest in the scandal outside the worlds of media and politics has faded. A leading Labour Party politician told me the other day that he had been at two recent focus groups with floating voters in outer London. In neither group did anyone mention Leveson, Murdoch or phone-hacking. The American media pundit wrote just before Rupert Murdoch’s appearance to give evidence that the inquiry hadn’t learnt anything that “any sentient being didn’t know already”. That is an absolutely classic example of the distorting spectacles people wear inside the media bubble.

What Wolff says is true in the very limited sense that some of the most shocking details have emerged not from the Leveson Inquiry but from the police investigations. There are at least 120 detectives from Scotland Yard working on three interlocking inquiries which have proliferated outwards from a phone-hacking inquiry which has uncovered more than 5000 targets. More than 50 people have been arrested; several, including the ex-CEO of News International Rebekah Brooks, have now been charged. And not with hacking either – with conspiracy to pervert the course of justice, which is a more serious offence, carrying a more or less automatic prison sentence on conviction.

So what have people learnt that Michael Wolff thinks every sentient person already knew?

  1. They didn’t know that a lot of popular journalism “scoops” were basically cheating. A proportion of stories in some papers were got by hacking voicemails or emails and by bribing public officials. There was a deeply corrupt culture at some papers (and not just at the News of the World).
  2. At exactly how many other papers isn’t yet clear. A private detective called Steve Whittamore who got hold of ex-directory phone numbers and hard-to-get addresses recorded 17,500 transactions with newspapers. The News of the World wasn’t his biggest client. The Daily Mail, still using Whittamore in 2006/7, was the hungriest user. This wasn’t phone-hacking, but it wasn’t legal either.
  3. The scandal was revealed by stubborn journalism which wasn’t just difficult but which required stamina and nerve. A regulated public service broadcaster couldn’t have stuck with such a controversial story for so long. The BBC chairman, Chris Patten, admitted as much in a very frank speech.
  4. News International’s popular titles had essentially infiltrated the Met Police. Resting hacks would work as PRs or consultants; ex-coppers would write columns. Champagne was drunk. It might have started as just another exercise in story-getting but it grew to be much more.
  5. Politicians were all too keen to give Rupert Murdoch what he wanted. Their reasons varied: they were scared of him and some of his papers, they wanted good coverage, his businesses created jobs, they agreed with his outlook. They all convinced themselves that he was an irresistible force. That was how he collected, over quite a long time and with the help of both major parties, more than a third of British newspaper circulation.
  6. There is very little real penalty for invading peoples’ privacy – and the only penalties there are have come in the decade after the passing of the Human Rights Act. But it is effectively an “illegible” law, hard to predict or interpret.Not all the people who have their privacy invaded are celebs.
  7. The inquiry has revealed an ingrained culture of casual cruelty by reporters towards people who by no stretch of the imagination could be called self-promoting celebrities.
  8. Self-regulation of big, national papers (note that the unusual market structure of the British presses creates fierce competition) doesn’t work. (Even if the system is widely imitated and works ok for regionals and mags). Britain is – as you know here – not the only country to have been pondering this issue.
  9. What happened at the News of the World and The Sun had at least something to do with a feeling (illusory as it turned out) of invulnerability. The root of that feeling was the proportion of the market owned by one company

So many different things have got mixed up here. Phone-hacking is illegal and not a matter for regulation however framed; likewise computer hacking and bribery of public servants if those allegations are proved. The inquiry has been a receptacle for every complaint and resentment which has accumulated in the last 20 years – some of them nothing to do with the scandals which snuffed out the News of the World. The airing of these grievances is one of the public services which such an inquiry does before it even reports and recommends.

So what conclusions have people drawn so far?

  • Schadenfreude: there’s a small but influential part of the Brit estab long wanted Rupert Murdoch’s head on a pike at the Tower of London and this is a pretty close substitute. Murdoch’s influence in London has shrunk and will recede further. The scandal may shorten the time which he has left in full control of News Corp.
  • People assumed that Murdoch ran the country as the puppet-master of politicians. He didn’t, but he wasn’t accountable for what he was doing. Now he is: he’s had to give evidence in public twice. Both he and his son James are in the awkward – and that’s putting it mildly – position of having either lied to both a parliamentary and a judicial inquiry or – the only alternative explanation – having been ignorant to the point of negligence about some important matters discussed at the top of what was always supposed to have been a tightly-managed company.
  • A lot of people have concluded that the root of all the trouble is size of News Corp holdings. As I said, that’s part of the problem. But the heart of the matter is the lack of accountability. That issue goes wider than News International and, because it involves the balance of the media duties and obligations against press freedom, it isn’t simple. No matter how many people pretend that it is.
  • In the highly charged atmosphere in London, shameless inquiry witnesses can get away with breathtaking fictions. Peter (now Lord) Mandelson, guru, strategist and spin doctor to Tony Blair told the inquiry that he didn’t leak things. He then said that the world would be better if papers took more interest in serious news: their circulations would rise if they did. Neither claim is true and of course he knew so.
  • Last lesson that people have drawn: regulators need more teeth: powers to investigate, perhaps to fine, take third-party complaints, to insist on the prominent publication of corrections. Voices insisting that this is the way forward rarely manage to convey how these advances will be compatible with the preservation of what no one disputes have been the advantages of the much-abused press self-regulation system: speedy handling of complaints which is free to those complaining.

But if I predict what I think will happen when Leveson publishes his recommendations this autumn, I think it is likely that he will propose a media regulation system with a set of better dentures. It’s a mugs game trying to infer a judge’s thinking from the questions he asks witnesses, but I detect these signals:

  1. A new regulation system would be independent of government but would be established in law so as to ensure that publishers of a certain size can’t drop out.
  2. Something has to be done about paparazzi and harassment, preferably by this new regulator.
  3. The regulator should if possible provide incentives for rules of conduct in newsrooms.

If this is what Leveson recommends it won’t be uncontroversial. But MPs, still smarting from the mauling they received over their expense claims, are in a vengeful mood.

More generally, I’d predict:

  • Determined attempts to write new media ownership laws which would force Rupert Murdoch to shed some holdings in Britain. When – it’s only a matter of time – Rupert isn’t in charge at News Corp, his successors in NYC and LA will surely sell newspapers.
  • In time, the case for separate regulation of print/online and broadcasting will fade, despite the advantages of “mixed economy” of regulation.
  • How much regulation is applied to media is more likely to be graded or varied by the size of publisher/broadcaster/digital rather than according to platform.
  • As we go forwards, we’re going backwards to the media anarchy and experimentation of the 18thcentury. If we try and look at these events with the eye of a historian, what do we see?
  • Second half of 20th century hollowed out the dominant print media: TV took over news, channels multiplied
  • UK 1960: 8 national dailies, 3 radio stations, 1 TV channel. 2010: 9 national dailies, 100s of radio and TV channels, millions of websites.
  • But note that what has fragmented is news distribution, not news gathering.
  • UK national print daily paper total circulations peaked in 1940s. Decline accelerated 2005-10 when household broadband penetration doubled from high 30% to high 60%. That increase and the iPad going mass in the middle class has speeded up the crisis.
  • Web did not start pressure on profitability of papers: made it worse.
  • This affects everyone in print in Eng-speaking world +Europe: Daily Mail group profits down 26%, New Orleans Times-Picayune layoffs and perhaps publishing in print three times aweek. Fairfax/News Ltd “structural adjustments” – i.e. people lose their jobs.
  • New York Times: 8 years ago, worth $7bn and dividend of $100m p.a. Now: worth $1bn and no dividend.
  • Modern societies shift very fast and journalism shifts with it. A media insurgent may one day soon bid for the NYT: will it be Google or Bloomberg?

Without making excuses for anything illegal or unethical, pressure on the circulations of popular national papers played a part in what happened. As the full impact of the web became clear at the turn of the new century, their editors were desperate for material that was different.

I’ve been trying to give you a fair picture of what’s happened and what it’s likely to lead to. I’ll finish with what I think should be done and what I would hope Leveson might say:

A lot of this is about law.

First and foremost people are accountable for what they do by the enforcement of the law. Regulation systems of the past were based around arrangements which could be made for small groups of publishers. That world has gone.

Proper privacy tort required – needed anyway because of digital.

The relationship of law and regulation is critical.

Speed and cost in libel and privacy cases remain basic issues – Leveson could make a great contribution to helping improve this.

Journalism isn’t synonymous with media or communications. Anyone can communicate with new media tools. Steady flow of examples of journalists trying to define what the skill actually is. I think four core things:

– Verification

– Eye-witness

– Sense-making

– Investigation

That’s journalism’s contribution to the quality of public reason. A few years, a lot of people talked about digital communications “disintermediating” journalists. I think we should talk more about “re-intermediation”.

Much very good journalism is done close to the edge of the rules and the law. That may need defending: that can only be done by distinguishing what deserves protection by testing whether what was done was in the public interest. Lawyers think this idea is too elusive to be useful in the courts.

There could be a British bargain:

    1. Stronger and more consistent public interest defences in laws
    2. A privacy tort
    3. A speedy tribunal for libel + privacy
    4. Courts/tribunal could take into account editorial integrity, as tested and supervised by a regulator organized by editors and publishers who had a legal incentive to do this

You’ll note that this is a mix of accountability before the law, defence of public interest reporting and incentives for better behaviour. By long route, I’ve come round to Australia, for there’s an echo of these ideas about incentives in proposals aired here (and also in the Irish system).

I hope we can look in more detail at the debates you’ve been having here in discussion.

 

Given at the Australian Centre for Independent Journalism, University of Technology Sydney (30.5.12) and at School of Journalism, Monash University, Melbourne (31.5.12).

 

 

 

 

 

 

 

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