Chapter 3: Alternative news providers

¶1.1 For centuries the printed press was the only medium that brought news to the people. C The introduction of broadcasting in the 1920s brought a new voice, but one that had a very different relationship with the public than that of the newspapers with their readers. Technological changes in the last few decades have completely revolutionised the market in which newspapers are working, leading to the fragmentation not only in readership and advertising but also the introduction of news providers that are not currently a part of the self-regulatory, or indeed any other regulatory, regime.

Broadcasters

¶2.1 The main source of news in the UK is broadcasting, with 59% of news consumption coming from the three main broadcasters (as opposed to 29% from the six main national newspaper groups).¹¹ http://stakeholders.ofcom.org.uk/binaries/consultations/public-interest-test-nov2010/statement/public-interest-test- report.pdf At the same time broadcasters reach a higher proportion of the public than any individual newspaper title, with 81% of those in the UK who consume news receiving some of their news from the BBC.²² http://stakeholders.ofcom.org.uk/binaries/consultations/public-interest-test-nov2010/statement/public-interest-test- report.pdf

¶2.2 96% of UK households have digital TV,³³ http://stakeholders.ofcom.org.uk/binaries/research/cmr/cmr11/UK_Doc_Section_1.pdf offering 50 TV channels without subscription⁴⁴ http://www.freeview.co.uk/ (and many more with subscription), including four free to view 24 hour news channels, with at least another six⁵⁵ http://www.sky.com/products/tv-packs/extra-channels/ 24 hour news channels in some subscription packages. With the significant exception of the BBC these broadcasters are either advertising or subscription funded. This means that broadcasters are competing with newspapers for sales, for audience time, and for advertising revenue. Broadcasters are regulated by Ofcom, operating under statutory powers, and are subject to the Ofcom's Broadcasting Code.

¶The BBC

¶2.3 The BBC is a national public service broadcaster which is established by a Royal Charter⁶⁶ http://downloads.bbc.co.uk/bbctrust/assets/files/pdf/about/how_we_govern/charter.pdf (this was last renewed in July 2006, and came into force on 1 January 2007)⁷⁷ p1, para 4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Mark-Thompson. pdf and a Framework Agreement.⁸⁸ http://downloads.bbc.co.uk/bbctrust/assets/files/pdf/about/how_we_govern/agreement.pdf The Royal Charter sets out the objectives and purpose of the BBC.⁹⁹ pp5-6, lines 23-4, Mark Thompson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Morning-Hearing-23-January-2012.pdf; p2, para 4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Witness-Statement-of-Lord-Patten1.pdf. http://downloads.bbc.co.uk/bbctrust/assets/files/pdf/about/how_we_ govern/charter.pdf There also exists a Framework Agreement between the BBC and the Secretary of State for Culture, Media and Sport, which sets out the provisions of the BBC's funding and regulatory duties.¹⁰¹⁰ p3, para 5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Lord-Patten1.pdf

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¶2.4 The BBC Trust is the sovereign body, responsible for making overall strategic decisions for the BBC. It has full oversight of the BBC Executive Board.¹¹¹¹ pp5-6, lines 23-4, Mark Thompson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Morning-Hearing-23-January-2012.pdf; p3, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Witness-Statement-of-Lord-Patten1.pdf Lord Patten, the current Chair of the BBC Trust, has made a clear distinction between the responsibilities of the Trust and the BBC Executive. As a sovereign body, the Executive is required to act in accordance with the governance set out by the Trust; equally, the Trust must not exercise the functions that are the responsibility of the Executive.¹²¹² p5, para 13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Lord-Patten1. pdf

¶2.5 A number of individual Boards report into the Executive Board, including the Editorial Standards Board. This is the main editorial forum for the discussion of editorial standards issues facing the BBC by senior editors, and where responses to such issues are formulated and discussed.¹³¹³ p4, para 13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Mark- Thompson.pdf The function of the Editorial Standards Board is therefore to monitor and review the editorial compliance systems which are in place at the BBC, in tandem with the Complaints Management Board.¹⁴¹⁴ ibid

¶2.6 The former Director General of the BBC, Mark Thompson, explained to the Inquiry that he also served as the Head of the BBC's Executive Board. As Editor-in-Chief he was directly responsible for the entirely of the BBC's editorial and creative output.¹⁵¹⁵ pp2-3, para 7, ibid Mr Thompson described the BBC in the following terms:¹⁶¹⁶ pp19-20, lines 23-8, Mark Thompson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript- of-Morning-Hearing-23-January-2012.pdf

"…the character of public service broadcasting and the character of the BBC's editorial mission is different in many respects from that of some newspapers. The kinds [sic] of stories we do are different. In matters of privacy, our focus, when there is a debate about intrusions of privacy, are, I think without exception, in a journalistic context, around investigations into matters which I think everyone would accept were of public interest. …we don't do any investigations into people's private lives for their own sake."

¶2.7 The BBC meets its public purpose obligations, set out in the Royal Charter, through the distribution of information, education and entertainment. These are delivered on multiple platforms and include television, radio and online services.¹⁷¹⁷ Article 5 of the Royal Charter, http://downloads.bbc.co.uk/bbctrust/assets/files/pdf/about/how_we_govern/charter. pdf

¶Corporate Governance

¶2.8 The BBC's Editorial Guidelines set out the overarching principles underpinning editorial management at the corporation as well as defining the appropriate structure for that management. These Guidelines, most recently revised in 2010 following a public consultation process, are "founded on the BBC's stated editorial values".¹⁸¹⁸ pp6-7, lines 25-1, Mark Thompson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Morning-Hearing-23-January-2012.pdf The Trust is responsible for commissioning these Guidelines from the Executive Board. In addition to the Guidelines, the BBC must also comply with sections of Ofcom's statutory Broadcasting Code,¹⁹¹⁹ http://stakeholders.ofcom.org.uk/broadcasting/broadcast-codes/broadcast-code/ including the Code on fairness and privacy. This safeguards the treatment of individuals and organisations in programmes broadcasted by the BBC. Compliance with the BBC's Editorial Guidelines is the responsibility of the individual editor and producer.²⁰²⁰ Section 2 of the BBC Editorial Guidelines, http://www.bbc.co.uk/editorialguidelines/page/guidelines-using- roles-responsibilities; p4, paras 3.1-3.2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness- Statement-of-Robert-Peston.pdf; p3, para 3.1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Witness-Statement-of-Nicholas-Robinson.pdf In addition to the Editorial Guidelines, there are separate Producers' Guidelines. Certain programmes, particularly those which rely on investigative journalism, also have to abide by relevant individual handbooks. The BBC C has separate policies relating to complaints, data protection, and fraud management and ant-bribery.

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¶2.9 Different units at the BBC have responsibility for the general oversight of specific regulatory areas. For example, Fraud Management is overseen by the Investigations Unit under the overall supervision of the Chief Operating Officer and the Chief Financial Officer. Data Protection is overseen by the Information and Compliance Unit. With effect from 1 October 2007, the Controller, Fair Trading was appointed as BBC Compliance Officer. There is also a Central Compliance Unit (also established in 2007) which is responsible for monitoring, improving and reporting on the BBC's compliance obligations. The Compliance Unit is "not responsible for delivering compliance but is responsible for ensuring that an appropriate framework is in place to minimise compliance failures."²¹²¹ p5, para 21, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Summary-of-Evidence-presented-by- the-BBC.pdf Editorial policy compliance and financial compliance fall outside the remit of the Compliance Unit's functions.

¶Regulation of the BBC

¶2.10 The BBC is regulated by the BBC Trust. The Trust has a 'supervisory role' which is generally restricted to the regulation of broadcast content after it has been transmitted.²²²² p3, para 10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Mark- Thompson.pdf; pp5-6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Lord- Patten1.pdf Lord Patten told the Inquiry that:²³²³ pp103-104, lines 24-3, Lord Patten, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Morning-Hearing-23-January-2012.pdf

"I would never ever seek to interfere with one of [Mr Thompson's] editorial decisions. I wouldn't, for example, ever ask to see a BBC programme, at least not in conceivable circumstances, before it was broadcast, if the Director General had decided it was worth broadcasting".

¶2.11 However, Lord Patten also told us that there were occasions where the Trust would consider the principles of the Editorial Guidelines prior to transmission.²⁴²⁴ p8, para 23, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Lord-Patten1. pdf The Trust exists to hold the Executive to account, ensuring that the BBC's performance is in line with the public purpose set out in the Royal Charter. This includes: the BBC's compliance with general law; regulatory requirements; as well as the policies set by the Trust, including editorial guidelines and other codes, strategies and other priorities. To this effect, the duty of the Trust is to ensure that the BBC functions in the interest of licence fee payers.²⁵²⁵ p2, para 7; p5, paras 14-15, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of- Lord-Patten1.pdf

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¶2.12 Ofcom is responsible for the regulation of some aspects of the content produced by the BBC. This responsibility is defined in the Royal Charter and Framework Agreement, and the Communications Act 2003.²⁶²⁶ p3, para 8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Mark-Thompson. pdf Therefore, the regulatory jurisdiction of the Trust and Ofcom overlap in respect of this content. Ofcom exercises a regulatory function in relation to the BBC's commercial activities, notably where they impact on the wider media market. All BBC commercial services must comply with the Ofcom Statutory Code, and Article 29 of the C Framework Agreement requires the BBC Trust and Ofcom to create a Joint Steering Group in respect of market impact assessments.²⁷²⁷ Section 19 of the BBC Editorial Guidelines, http://www.bbc.co.uk/editorialguidelines/page/guidelines-accountability- ofcom/ However, the BBC Trust assesses the market impact of "non-services" in-house (applying a Public Value Test). There is a clear delegation of function to Ofcom in relation to the assessment of the market impact of the BBC's commercial activities. This is accompanied by an express recognition that Ofcom could play a greater role and offer assistance and expertise to the BBC, including in relation to areas which currently fall within the remit of the BBC Trust (such as non services).

¶2.13 Ofcom also exercises a role of oversight in relation to the editorial content of BBC output, specifically in relation to privacy and fairness. Where Ofcom finds a breach of the privacy or fairness sections of its Code, it may require the BBC to broadcast a statement of its findings.²⁸²⁸ ibid Further, should Ofcom find that the Code has been breached "seriously, deliberately, repeatedly, or recklessly",²⁹²⁹ ibid it can impose sanctions which range from a requirement to broadcast a correction or statement of finding to a fine of up to £250,000.³⁰³⁰ ibid Guidance on right to reply expressly refers to the requirement under the Ofcom Broadcasting Code to afford the person a timely opportunity to respond.³¹³¹ Section 6 of the BBC Editorial Guidelines, http://www.bbc.co.uk/editorialguidelines/page/guidelines-fairness-right- of-reply//

¶2.14 The Inquiry has heard evidence of situations where editorial incidents have taken place, which have led the BBC Trust to commission independent investigations into apparent breaches of the Editorial Guidelines, and the decision to impose relevant sanctions.³²³² pp11-12, para 34, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Lord- Patten1.pdf The scandal around the misuse of premium rate phone lines by the BBC in 2007,³³³³ pp53-54, lines 23-23, Mark Thompson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript- of-Morning-Hearing-23-January-2012.pdf in which it was revealed that viewers had been invited to call premium rate numbers in order to enter competitions on programmes that had, in fact, been pre-recorded, is an example. The BBC Executive proposed an action plan and the BBC Trust commissioned an independent report by Ronald Neil. Mr Neil was appointed an independent editorial adviser to the Trust in order to review the Executive's action plan. This resulted in the development of new training programmes, including the BBC Academy.³⁴³⁴ pp55-56, lines 16-7, Mark Thompson, ibid; p12, para 34, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/01/Witness-Statement-of-Lord-Patten1.pdf In the interim, audience phone-ins were suspended and a new Interactive Advice and Compliance Unit was created to look at audience interaction with the BBC.

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¶2.15 In October 2008, two radio presenters, Russell Brand and Jonathan Ross, made unacceptable phone calls to Andrew Sachs in the course of a radio programme aired in that month.³⁵³⁵ p12, para 34, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Lord-Patten1. pdf In December 2008, BBC Management announced an action plan to address the editorial failings which had led to the programme being broadcast.³⁶³⁶ pp57-58, lines 13-13; p59, lines 1-16, Mark Thompson, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/01/Transcript-of-Morning-Hearing-23-January-2012.pdf The progress made under this action plan was then subject to an independent review carried out by Tony Stoller (former Chief Executive of the Radio Authority) and Tim Suter (former broadcasting partner and Board C member at Ofcom) for the BBC Trust.³⁷³⁷ p12, para 34, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Lord-Patten1. pdf Both the BBC Executive and the BBC Trust reported on the findings of that independent review.

¶2.16 Speaking to the importance to the BBC of addressing these failings in editorial conduct, Mr Thompson told the Inquiry about his role in informing the public of the necessary controls that have since been implemented, that:³⁸³⁸ p56, lines 11-19, Mark Thompson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Morning-Hearing-23-January-2012.pdf

"…it's fundamental to my duty in this role. I think my job is to – to – not just to sit on top of a management machine and try and optimise it for editorial compliance – that's, you know, in a senses, part of what one has to do to try and get the right result – but also to take responsibility for what the BBC broadcast and also to take personal responsibility for occasions when we have fallen short of our high standards."

¶2.17 The recent revelations of sexual abuse by Jimmy Savile, and decisions around the Newsnight investigation into the matter, have raised questions in some quarters as to the effectiveness of broadcasting regulation and the internal governance systems within the BBC. None of this is a matter for this Inquiry, and there are separate inquiries into the specific issues. I merely note that, without in any way prejudging any of those investigations, the original Newsnight investigations, the ITV documentary that ultimately revealed the allegations, and the subsequent Panorama programme that investigated the handling of the matter within the BBC, were produced within the constraints of broadcasting regulation, not by the print press. Any attempt, therefore, to suggest that broadcasting regulation has had any part in constraining reporting on the matter is simply not borne out by the facts.

¶Complaints system

¶2.18 The BBC is required to comply with the Royal Charter and the Framework Agreement. Complaints to the BBC therefore have an important role to play:³⁹³⁹ p27, para 52.3, http://downloads.bbc.co.uk/bbctrust/assets/files/pdf/about/how_we_govern/charter.pdf

"The BBC's complaints handling framework (including appeals to the Trust) is intended to provide appropriate, proportionate and cost effective methods of securing that that BBC complies with its obligations and that remedies are provided which are proportionate and related to any alleged non-compliance."

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¶2.19 The Trust has the role of final arbiter in appropriate appeals, and has responsibility for setting the BBC's complaint framework.⁴⁰⁴⁰ pp47-48, lines 25-2, Mark Thompson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript- of-Morning-Hearing-23-January-2012.pdf A Trust Protocol is established by the Trust, which oversees the procedures for specific areas of complaint, including editorial complaints.⁴¹⁴¹ p8, para 25, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Lord-Patten1. pdf This is to ensure a clear division of responsibilities between the Trust and the Executive. The Trust does not have a role in handling or adjudicating upon individual complaints in the first instance, unless the complaint is concerning the act or omission of the Trust itself.⁴²⁴² p10, para 31, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Mark- Thompson.pdf In this regard, the responsibility as final arbiter is delegated to the Editorial Standards Committee.

¶2.20 Any BBC viewer who is dissatisfied with any of the content broadcasted by the BBC may submit their complaint directly to the Corporation. Complaints that relate to fairness or privacy can also be made to Ofcom, in line with their regulatory jurisdiction over this form of content. Although the complainant can submit complaints relating to impartiality or accuracy issues to Ofcom,⁴³⁴³ p9, para 30, ibid it is unlikely that Ofcom would entertain these types of complaints. Lord Patten told the Inquiry that, in practice, Ofcom would inform the complainant that such a complaint could be dealt with by the BBC.⁴⁴⁴⁴ pp10-11, para 30, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Lord- Patten1.pdf Equally, the Editorial Standards Committee is unlikely to consider a fairness and privacy or standards matter which overlaps with the regulatory responsibilities of Ofcom, until Ofcom has completed its own processes.⁴⁵⁴⁵ ibid

¶2.21 Lord Patten explained the nature of the complaints system, whereby viewer complaints are dealt with at the first stage by the executive's information department (possibly including the producers of the programme in question itself). Should no resolution result from this first stage of mediation, viewers can take complaints to a second stage process where they are handled by the complaints unit, governed by the Complaints Management Board (which reports directly to the BBC Direction Group).⁴⁶⁴⁶ p11, para 34, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Mark- Thompson.pdf; pp105-106, lines 12-1, Lord Patten, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Morning-Hearing-23-January-2012.pdf The last stage is the process of appeal to the Trust, should the complaint be unresolved to the satisfaction of the viewer.⁴⁷⁴⁷ pp105-106, lines 12-1, Lord Patten, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Morning-Hearing-23-January-2012.pdf

¶2.22 There is a recognition that the complaints system requires improvement, particularly in order to speed up the process of reply. Lord Patten's review of BBC Governance expressly acknowledged licence fee payers had expressed concerns that the current system was "too complicated and too slow". He told the Inquiry that he has recommended the appointment of a "chief of editorial complaints, of corrections",⁴⁸⁴⁸ p106, lines 7-8, Lord Patten, ibid whose role would be to ensure that the system was improved and operated in a transparent manner. The Governance Report concluded that the BBC should publish a single page guide explaining where complainants should go to complain about BBC broadcast content or services. Lord Patten told the Inquiry that the BBC will work with Ofcom to ensure there is common language in the guide to explain in what circumstances complainants may complain to Ofcom. Other recommendations from the Governance Review include the streamlining of the appeals process and regular impartiality reviews. Concerns were also raised about the correction of mistakes made online on the BBC website.

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¶2.23 In 2007, the BBC Editorial Standards Committee recorded that 94% of complaints had been dealt with within ten working days. In this regard, Mr Thompson informed the Inquiry that:⁴⁹⁴⁹ pp49-50, lines 10-18, Mark Thompson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript- of-Morning-Hearing-23-January-2012.pdf

"The BBC receives well over a million contacts from the public every year, of which only a relatively small proportion are complaints, but that still adds up to something like 240,000 complaints a year, of which the overwhelming majority are responded

¶C to very quickly. We have a target of responding in ten days. I think we're currently at

93,94 per cent of that target, and in, again, the overwhelming majority of cases, the complaint is satisfactorily dealt with at that stage."

¶ITN

¶2.24 ITN is a news provider responsible for the production of the news programme for the broadcast channel, ITV. ITN also produce Channel 4 News, through a contractual agreement between ITN and Channel 4.⁵⁰⁵⁰ p4, para 8b, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-John-Battle.pdf The Chair of ITN, Maggie Carver, is responsible for the organisation, but delegates editorial matters to the Chief Executive Officer, John Hardie, who is responsible for the management of editors of both ITV News and Channel 4 News.⁵¹⁵¹ p1, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Maggie-Carver. pdf Ms Carver is responsible for ensuring that the corporate governance set out by the company is adhered to by staff. In part, this is done through the ITN's Compliance Manual, the ITN Health and Safety Manual and the Ofcom Code.⁵²⁵² p2, para 4, ibid

¶2.25 Compliance at ITN is the responsibility of the Head of Compliance, John Battle.⁵³⁵³ p1, para 4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Tom-Bradby.pdf; p1, para 3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Gary-Gibbon.pdf Mr Battle is author of the Compliance Manual, first published in July 2004. The Compliance Manual sets out "the industry regulations that affect news reporting, the main areas of laws affecting journalism such as libel, copyright, privacy and contempt of court and internal ITN standards and procedures."⁵⁴⁵⁴ p5, para 8h, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-John-Battle.pdf This manual is the centrepiece guidance issued to staff at ITN and forms the basis of ITN staff training.

¶2.26 ITN recently reviewed its Compliance Manual in light of allegations of phone hacking, as well as allegations of payments to public officials by journalists and others working at the NoTW. Although Jim Gray, Editor of Channel 4 News, told the Inquiry that the review of the Compliance Manual was regular procedure, he explained that additionally "as part of the process triggered by this Inquiry, we have held an independent external Inquiry into ITN's journalistic practices and some the [sic] findings of that will feature in the new Compliance Manual."⁵⁵⁵⁵ pp35-36, lines 24-2, Jim Gray, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Afternoon-Hearing-23-January-2012.pdf Mr Battle also gave evidence to this effect, stating that:⁵⁶⁵⁶ p60, lines 17-25, John Battle, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Afternoon-Hearing-23-January-2012.pdf

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"It's fair to say that as a grown-up and professional organisation, we'd have to have on board the Inquiry and what's been discussed here and within the news. There have been some tightening up procedures, tilting, as you said this morning, sir, towards better regulation. I don't think there's been substantive changes as a result of this Inquiry but it also includes a lot of updates on other issues, such as Twittering in court or online posting, so it's an update."

¶Channel 4 News C

¶2.27 Mr Gray is responsible for the entirety of editorial content of Channel 4 News, and for upholding relevant policies to ensure that journalists and individual editors at Channel 4 News are required to comply with the ITN Compliance Manual.⁵⁷⁵⁷ p1, para 3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Gary-Gibbon.pdf Mr Gray reports directly to Mr Hardie, ITN's Chief Executive Officer. Mr Gray told the Inquiry that Channel 4 News applied similar principles to the Omand principles,⁵⁸⁵⁸ Alan Rusbridger has talked at length about these principles which are applied at the Guardian News Media titles (see Part C, Chapter 2 above) which are "a whole series of tests about the proportionality of what is being proposed matches the level of gravity of what the story may be".⁵⁹⁵⁹ pp39-40, lines 25-3, Jim Gray, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Afternoon-Hearing-23-January-2012.pdf

¶2.28 Mr Gray describes Channel 4 News as a public service news broadcaster with an editorial focus on news that is in the public interest. He has said that consideration is given as a matter course to issues of privacy, consent, and public interest; all of which are built into the ITN Compliance Manual.⁶⁰⁶⁰ p8, para 18, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Jim-Gray.pdf He also told the Inquiry that there is a culture at Channel 4 News of behaving ethically and acceptance of journalists being held to account for their reporting. Mr Gray said in this regard that:⁶¹⁶¹ p44, lines 18-23, Jim Gray, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Afternoon- Hearing-23-January-2012.pdf

"We don't want to cause any problems, and we certainly don't want so [sic] have any incoming attack on our reputation or integrity which would then go forward to possibly damage Channel 4's repute, which we are contractually obliged to uphold and we must uphold and we want to."

¶Corporate governance at ITN and Channel 4 News

¶2.29 Mr Battle explained that although ITN is not a content broadcaster, the organisation is still obliged to operate in accordance with the Ofcom Broadcasting Code, as well as with the expectations and requirements of the individual broadcasters, ITV or Channel 4.

¶2.30 There are three levels of compliance within Channel 4 News: the ITN system and core Compliance Manual; the Channel 4 independent producers' handbook; and contractual obligations between ITN and Channel 4 which require consultation and notice in certain circumstances. Mr Gray told the Inquiry that the compliance manual "adds layers of practice, best practice and how to go around carrying out such investigations".⁶²⁶² p41, lines 5-6, Jim Gray, ibid Separately, under the Ofcom Broadcasting Code, Channel 4 News is obliged to offer timely and appropriate rights of reply to the subject of a story.⁶³⁶³ p41, lines 1-3, Jim Gray, ibid Mr Gray also described how Channel 4 News would approach a story that might involve potential breach of privacy:⁶⁴⁶⁴ p41, lines 7-23, Jim Gray, ibid

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"…if it was a serious allegation of wrongdoing or criminality, we would normally expect to contact the subject of the story in writing, putting forward the claims and the allegations and the evidence we had for what was going to be proposed to be contained in the report, and then give sufficient amount of time for the subject to respond. That can vary, That's not set down but it could be a matter of days or it could be longer. In some cases, depending on the response from the subject, it can drag on.

¶C …That's part of the way it is and if you have a real good story, you will navigate your way through that."

¶2.31 Commenting on the role of Ofcom in relation to Channel 4, and Channel 4 News, Mr Gray told the Inquiry that the Ofcom Broadcasting Code helps to codify the principles and cultural standards that Channel 4 News seeks to uphold. He explained this thus:⁶⁵⁶⁵ p49, lines 10-18, Jim Gray, ibid

"…through the ITN guidelines, [we] turn [the Code] into practice, and that's helpful as well, because for the team at ITN, that makes it our guidelines. It's not an external imposition. This is our culture we're expressing in the guidelines. It makes it more of a collaborative venture rather than: we're only doing this because of – it's a series of hurdles we have to overcome to get there. It can feel like that but it makes the journalism better at the end result."

¶Complaints system

¶2.32 In relation to complaints handling, Mr Battle told the Inquiry that ITN does not receive many complaints through Ofcom. He noted that, on average, ten complaints might be received in the course of a given year, and not all of these would be of a substantial nature.⁶⁶⁶⁶ p69, lines 2-3, Jim Gray, ibid Complaints in relation to Channel 4 News are handled by Mr Gray's Deputy Editor at Channel 4 News, who consults closely with the production team. The complaints are assessed in relation to the report in question with the Head of Compliance, documented as appropriate in consultation with Channel 4. Mr Gray explained that only in serious cases would a complaint be referred to him.⁶⁷⁶⁷ pp42-43, lines 23-8, Jim Gray, ibid However, should a complaint be submitted through Ofcom, then the complaint would be handled in accordance with the terms set down by the regulator. Mr Gray explained that Channel 4 News had received remarkably few complaints and, specifically, over the course of five years, "we haven't actually had a finding against us from an Ofcom complaint except once… and that was a partial ruling against us on an investigation".⁶⁸⁶⁸ p43, lines 19-22, Jim Gray, ibid

the World Wide Web

¶3.1 The media landscape, particularly the provision of news, both globally and in the UK has been transformed by the invention and phenomenal development of the Internet. At its simplest the Internet is a system of interconnected computer networks which use a standardised address system to enable the identification of each of the electronic devices that make up the network. Now literally billions of machines are linked. This means that huge quantities of increasingly complex information can be stored and accessed at ever greater speeds. It also means that the services that media providers can offer through the Internet to consumers can be ever more sophisticated, personalised and immediate.

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¶3.2 In terms of access and reach, 74% of adults in the UK have access to broadband, with average actual speeds of 6.8Mbit/s.⁶⁹⁶⁹ http://consumers.ofcom.org.uk/2011/08/a-nation-addicted-to-smartphones/ 22% of all the time that adults spend engaging with media is spent on the internet, with this figure rising to 30% for those aged between 16 and 24.

¶3.3 The Internet also enables citizens to access news generated by sources across the world.⁷⁰⁷⁰ Claire Enders, Competitive Pressures on the Press, Seminar 6 October 2012, http://www.levesoninquiry.org.uk/wp- content/uploads/2012/07/Claire-Enders-Competitive-pressures-on-the-press.pdf All UK media organisations, whether newspapers, broadcasters or others now have an C internet presence. Most of that content is available for free, although some, including some UK publishers, have begun to charge for online content. This free content can be accessed directly where the user knows what they are looking for, or can be found through search engines.

¶3.4 In addition to the individual websites of the world's news providers there are news aggregation services. Where a site is acting as an aggregator, it directs users to material created by others. These sites tend to rely on automatic selection through algorithms and usually involve no active editorial involvement by the aggregator. In some circumstances this will involve simply directing the user to the website of the news provider. In others, it involves essentially importing the news report from the original provider to the site of the aggregator. In the latter case this will mean that any associated advertising revenues will go to the aggregator rather than to the news provider. These sites are characterised by the fact that those operating the sites have little or no editorial input to the content of the material that they provide to users, take no responsibility for the accuracy of articles to which their users are directed, and have no role in the newsgathering process.

¶3.5 Although some news sites are merely aggregators of news, linking to content hosted by other news websites, Google news is different. It is a function within Google that will search for material only through online news content.⁷¹⁷¹ pp103-104, lines 24-8, David John Collins, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Morning-Hearing-26-January-2012.pdf However, the content itself is not generated by Google, nor does Google operate any editorial control over the searched content beyond the algorithms that facilitate the search.⁷²⁷² p104, lines 17-20, David John Collins, ibid

¶3.6 In addition to the presence that traditional providers have on the internet, recent years have also seen the growth of completely new approaches to news generation and provision. One example is the rise of blogs and other web-based news, current affairs and celebrity commentary. Blogs and other commentary come in a number of different forms, but are essentially a personal commentary. They can include examples of 'citizen journalism' produced by individuals sharing their experience of, and views on, events that occur.

¶Regulation of the Internet

¶3.7 In evidence to the Inquiry, the Internet has been described as an unregulated space, in which businesses can avoid the regulation of a given jurisdiction by hosting the content they publish in a different legal jurisdiction. Witnesses to the Inquiry have said that this creates an imbalance with market consequences between what might be written by UK newspapers and what might be published by websites hosted abroad.⁷³⁷³ pp7-12, paragraphs 37-61, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of- Martin-Clarke.pdf Witnesses have pointed to the publication of photos of, in particular, Prince Harry and the Duchess of Cambridge, which though different in terms of the surrounding circumstances, highlight issues around the existence of different jurisdictions and regulatory regimes as applied to the press and the Internet. The Sun has argued that the ready availability of photographs of Prince Harry on the Internet justified in part its decision to publish those same photographs.⁷⁴⁷⁴ see Part F, Chapter 5 for a full analysis of these issues

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¶3.8 To some extent, this is an accurate if very cursory reflection of the regulatory picture with regard to the Internet. However, it is a simplification that ignores what is a more complex C picture. Certainly, the very nature of the Internet does not lend itself to regulation. It is a global network made up of a very large number of interconnected, largely autonomous networks, operating from many different legal jurisdictions without any obvious central governing body. Indeed, in many ways this loose and lightly regulated structure has been encouraged by governments and by users as a source of both innovation and growth.

¶3.9 This does not mean, however, that the Internet is without any governing principles. To ensure interoperability of the constituent networks, as well as consistent policy on addressing, addresses and standards are administered by the Internet Corporation for Assigned Names and Numbers (ICANN), based in California, at which the UK Government is represented.

¶3.10 Access to Internet services is also regulated in the UK and Europe through telecommunications legislation as regulated by Ofcom. Internet services have predominantly been provided through the national copper wire telecoms network. The transmission of content wirelessly through the national radio spectrum network is regulated through the Wireless Telegraphy Act 2006 and has regulatory impacts for access to the Internet through wireless devices other than computers such as mobiles phones (especially smart phones like the iPhone), and other Internet enabled devices such as tablets (like the iPad and Kindles).

¶3.11 In addition, just as the general law applies online as it does offline, some forms of online content are also regulated. Broadcast content, known as video on demand when it is made available online, through for example the BBC iPlayer service, or in the case of Channel 4, through 4oD, is regulated by the Audiovisual Media Services Regulations 2009 and the Audiovisual Media Services Regulations 2010, by the Authority for Television on Demand (ATVOD). The necessary powers for the regulation of these services are delegated to ATVOD by Ofcom through a formal designation. These ensure that protections similar to those applied to broadcast content are applied to that same or similar content when made available online.

¶3.12 In addition to regulation of broadcast and equivalent content through ATVOD, UK Internet Service Providers have also taken a broadly self-regulatory approach to some of the content they host and have applied a limited number of standards to that content. In many circumstances, ISPs and others have cooperated with law enforcement and other agencies to remove illegal content or block access to it. The Internet Watch Foundation (IWF) is an example of this self-regulatory approach. The IWF works closely with ISPs to ensure that webpages, including those hosted outside of the UK, which provide access to potentially criminal content and, specifically, images of child abuse, are reported and removed or blocked at source.

¶3.13 The current reliance on collaborative approaches and industry self-regulation does not mean that enforcement of UK law online is not possible. However, successful prosecution relies on considerable cooperation across a number of agencies, not least the ISPs and content providers, and is most effective where the alleged act is also clearly criminal in the host country.

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¶3.14 To this end, it is worth noting that Twitter and other social media have cooperated with UK law enforcement in cases of obvious criminality. During the rioting in the summer of 2011, both RIM Blackberry and Twitter worked closely with police and other enforcement agencies to identify those using social media and communications networks to perpetrate or help commit criminal acts. In 2011, Lancashire County Council also worked with Twitter to identify and bring prosecutions against individuals suspected of tax avoidance.

¶3.15 This relative lack of internet specific regulation is unlikely to change. The Government made clear that it sees the Internet as a key driver of future economic growth and innovation, and has made public its commitment to an open but responsible Internet.⁷⁵⁷⁵ Speech by the Rt Hon Ed Vaizey, Minister of State for Culture, Communications and the Creative Industries, to PICTOR, 25th October 2012 This should be understood as an internet in which all legal content is available and there is no blocking of sites or discriminatory practice (such as prioritising one very similar product over another), and where the industry works together with Government to deliver solutions to issues particularly in relation to:

e-Accessibility;
harmful and inappropriate content; and
copyright.

¶3.16 Where legislation has been brought forward in relation to the Internet, this has been in response to legislative changes decided at a European level, intended to protect the privacy of users. Changes to the law have extended the powers available to the Information Commissioner's Office to ensure that it has appropriate tools to do its job effectively in a digital age.⁷⁶⁷⁶ pp65-66, (DCMS), HMG response to its consultation on proposals and overall approach including its consultation on specific issues (2011), http://www.culture.gov.uk/consultations/7806.aspx These changes have extended the enforcement powers available to the ICO under the DPA into the Privacy and the Electronic Communications Regulations (PECR), and include powers to:

levy civil monetary penalties for PECR offences;
compel Communication Providers to disclose the identity of third parties; and
amend Assessment Notice powers which will enable the ICO to compel organisations to submit to an e-privacy audit.

¶3.17 The changes have been made in response to concerns at a number of high-profile data breaches, some as a consequence of criminal hacking, others by the apparent unwillingness of service providers to pay full heed of data protection legislation (as in the case of the unintentional interception of data from wifi-wireless and remote internet devices by Google in 2009).⁷⁷⁷⁷ p68, lines 16-21, David John Collins, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Morning-Hearing-26-January-2012.pdf

¶3.18 This has been alluded to in evidence given to the Inquiry. Google stated that privacy online was a matter of growing importance to the company. David John Collins, Vice President of Global Communications and Public affairs for Google, explained that the company's attitude towards privacy online and related matters has changed considerably with time reflecting both the growth in the use of online services and the changing legal landscape with regard to the internet.⁷⁸⁷⁸ pp65-68, lines 23-21, David John Collins, ibid Mr Collins said:⁷⁹⁷⁹ p68, lines 16-21, David John Collins, ibid

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"Google has always taken privacy seriously from a very strict compliance position; it's taken privacy seriously because ultimately the trust that we have with our users is incredibly important."

¶In this respect Google has worked hard to improve public awareness of privacy issues online, C and in January 2012 launched the "good to know campaign" which actively sought to raise public awareness of privacy tools in relation to email, social network accounts and other online functions that might help users to protect their privacy online.⁸⁰⁸⁰ p91, lines 10-17, David John Collins, ibid

Blogs and other web-based commentary

¶4.1 The Inquiry heard evidence in regard to the operation of blogs, online news aggregators, publishers, social network sites and online hosts.

¶4.2 There are a number of news blogs – the Huffington Post is an early, high profile example of one, which has developed over the years into something much more like an online newspaper – which specifically aim to bring a range of news stories and views on those stories to their readers. Other examples include the Guido Fawkes Blog, which focuses on 'tittle-tattle, gossip and rumours' about Parliament;⁸¹⁸¹ http://order-order.com/ the Jack of Kent Blog,⁸²⁸² pp15-96, David Allen Green, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Morning-Hearing-25-April-2012.pdf which describes itself as 'liberal and critical'; and Popbitch, which is a celebrity newsletter and message-board. Camilla Wright, co-founder of Popbitch, told the Inquiry that her intention in founding Popbitch was to create a publication like Private Eye for the celebrity world that would:⁸³⁸³ pp42-43, lines 12-10, Camilla Wright, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Afternoon-Hearing-26-January-2012.pdf

"... look at the hypocritical gap between how those in the public eye seek to be portrayed and how they really act."

¶4.3 There is no single format for these types of sites and individual sites can evolve, and have evolved, a great deal over time. Whereas Popbitch is clear in its ambition to entertain and understands itself to "poke fun" and comment on the "lighter" side of celebrity culture, Guido Fawkes, though ostensibly and in many respects similar, is different in nature. Paul Staines, the founder of the Guido Fawkes website, stated that Guido Fawkes actively seeks to break stories and prides itself on doing so ahead of the main news providers.⁸⁴⁸⁴ p99, lines 1-7, Paul Staines, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of-Morning- Hearing-8-February-2012.pdf

¶4.4 The type and size of audience attracted by such blogs varies hugely and depends unsurprisingly on the content they carry. For example, Mr Staines told the Inquiry that the Guido Fawkes site generally had between 50,000 and 100,000 readers daily. However, when very big stories are being broken this can rise to as many as 100,000 visitors per hour.⁸⁵⁸⁵ p99, lines 13-20, Paul Staines, ibid Mr Staines estimated that between 25% and 30% of his readers reached the site through search engines.⁸⁶⁸⁶ p100, lines 2-4, Paul Staines, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of- Morning-Hearing-8-February-2012.pdf Popbitch, by contrast, has 350,000 subscribers, whilst Holy Moly, which also covers celebrity news and gossip, serves 6.5 million page impressions a month to 1.6 million people.⁸⁷⁸⁷ evidence of Jamie East to Joint Committee on Privacy and Injunctions Q336, http://www.parliament.uk/documents/ joint-committees/Privacy_and_Injunctions/JCPIWrittenEvWeb.pdf

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¶4.5 In addition to the stand-alone blogs and sites described above, many established news providers also use blogs – for example the Guardian has been running a live blog on the Leveson Inquiry since the first of the Inquiry seminars – either for specific events or issues, or just by way of communicating with readers in a different manner. At the other end of the spectrum, many individuals run blogs on matters which are of interest to them, some of which will, from time to time, cover issues of news or current affairs and some which may well break stories if the people writing them are well placed to do so.

¶4.6 These vastly different sites are all offered to the public in the same way; they all have the same theoretical reach to the entire internet-connected population at the touch of a button (particularly when facilitated by search engines). They are also, with the regulatory exceptions set out above, entirely unregulated, though subject to civil and criminal law in appropriate jurisdictions. However, it is noteworthy that although the blogs cited here are read by very large numbers of people, it should not detract from the fact that most blogs are read by very few people. Indeed, most blogs are rarely read as news or factual, but as opinion and must be considered as such.

¶Purpose and process

¶4.7 Ms Wright explained the nature and purpose of Popbitch as a gossip site. She said that she believed that the public had a right to know certain facts about certain celebrities, particularly given the ability of some to "shape and influence people's lives."⁸⁸⁸⁸ p55, lines 7-8, Camilla Wright, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Afternoon-Hearing-26-January-2012.pdf Ms Wright argued that it is only right that publishers should bring material to the attention of the public if it brings to light what she described as the "gap between people's private life and public life."⁸⁹⁸⁹ p56, lines 1-3, Camilla Wright, ibid This she argues is not only very much in the public interest but is a reflection of everyday concerns that individuals may have, as well as the reality of celebrities and others putting potential personal or private information into the public domain through Facebook and other social media, that might sit uneasily or indeed at odds with their public persona.⁹⁰⁹⁰ p56, lines 15-23, Camilla Wright, ibid

¶4.8 Ms Wright acknowledged that this may mean that the line between what is private and what might be made public is fluid and dependent on context:⁹¹⁹¹ p57, lines 3-8, Camilla Wright, ibid

"We draw the line, I would say, we look at who is making themselves influential, and if so are they living up to it."

¶4.9 Understandably perhaps, for a relatively small operation, the standards of proof deployed by Ms Wright are lower, and the processes different from those that might be found on a print newspaper. Ms Wright said in relation to the corroboration of stories:⁹²⁹² pp48-43, lines 7-10, Camilla Wright, ibid

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"If it is a contentious or controversial story , I would want to get someone else to back up what they're saying and try and find if possible, some evidence to support what they're both saying."

¶4.10 Ms Wright also explained that whilst Popbitch may not have formal processes for establishing whether content might be in the public interest or a breach of privacy, the company does consult with and take advice from media lawyers, who have at times provided extracts from the Editors' Code of Conduct which they perceive might be useful for Popbitch to consider.⁹³⁹³ p61, lines 3-17, Camilla Wright, ibid C 4.11 Much as Popbitch understand itself to provide information to the public that it determines to be in the public interest, Guido Fawkes also prides itself on its ability to deliver stories it understands to be in the public interest, that might otherwise remain unknown. Mr Staines said:⁹⁴⁹⁴ pp114-115, lines 23-8, Paul Staines, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of- Morning-Hearing-8-February-2012.pdf

"I particularly don't think people in public life, people who are, you know, paid for by the taxpayers, or subject to the voters, should expect the same degree of privacy as a private citizen who has no public life can expect. These people – their character speaks to what the voters need to know about them as politicians, so if they misbehave in their private life – it's quite common that somebody who will lie to their wife will lie to the voters. That's an old adage that has some truth to it."

¶4.12 Indeed, Mr Staines stated in evidence that he would publish information that he assessed to be in public interest even if that information was the subject of a legally enforceable injunction. He referred in evidence to material made available by his blog which a court had ordered should be removed from the internet.⁹⁵⁹⁵ p106, lines 15-18, Paul Staines, ibid This is explored in more detail below.⁹⁶⁹⁶ see paras 5.13, 5.14 and 7.6

¶4.13 Mr Staines also gave evidence on the standards and editorial processes he deploys with regard to the content he publishes. He said that in many cases he is unable to corroborate stories through a second source:⁹⁷⁹⁷ p102, lines 2-9, Paul Staines, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of- Morning-Hearing-8-February-2012.pdf

"Yeah, quite often there's only one source in the room who can provide us with information, so we have no choice. We don't rely on single sourcing from people we don't know. There has to be some authority to that person or we have to have a level of trust built up over time. If someone came in fresh and was a single source we couldn't verify in any way whatsoever, I'd be very reluctant to run with it."

¶4.14 Mr Staines also made clear that accuracy was as important to the credibility of a blog site like Guido Fawkes as it was for a print newspaper. It is for this reason that the majority of material sourced by Mr Staines was either verifiable or from a trusted source. Only some 10% of material might be from an unknown source.⁹⁸⁹⁸ p110, lines 4-12, Paul Staines, ibid

¶4.15 Additionally, Mr Staines told the Inquiry that journalists occasionally provided him with material that an editor may have decided not to publish (that had been spiked), or that might not fit with the overall agenda of the publication in question.⁹⁹⁹⁹ p112, lines 1-9, Paul Staines, ibid As such Guido Fawkes provides a valuable vehicle for publication of such content. Guido Fawkes also receives material that journalists want to push further and establish whether the story in question has legs.¹⁰⁰¹⁰⁰ p112, lines 10-23, Paul Staines, ibid

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¶4.16 Mr Staines also stated, in a parallel that he himself has drawn with the former editor of The Sun, Kelvin Mackenzie, that he would run stories that are single sourced if the story was of little consequence, or in keeping with the overall tone of the Guido Fawkes site, namely, that it was gossipy or humorous in nature.¹⁰¹¹⁰¹ p102, lines 16-20, Paul Staines, ibid

¶4.17 Much as the Guido Fawkes site is used as a proxy by some newspapers and a means of running stories that might lead to a newspaper being challenged, Ms Wright said that Popbitch is C also occasionally used by journalists from print newspapers in this manner. However, Ms Wright made clear that is a practice that she generally seeks to avoid. She noted that such an approach has not happened for some time.¹⁰²¹⁰² p66, lines 11-13, Camilla Wright, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Afternoon-Hearing-26-January-2012.pdf Ms Wright was also keen to emphasise that she would only publish such information if it were in the public interest. This, she said, has not yet happened.¹⁰³¹⁰³ p66, lines 18-20, Camilla Wright, ibid

¶4.18 The Inquiry also heard evidence from the Carla Buzasi, Editor in Chief of the Huffington Post UK. In contrast to either Popbitch or Guido Fawkes, the Huffington Post UK is not a blog built around the knowledge and gossip of a given area, it is an online newspaper employing trained journalists and abiding by journalistic standards as set out in the Editors' Code of Practice, as well as participating in the system of self-regulation for the press through the PCC.¹⁰⁴¹⁰⁴ pp75-76, lines 10-19, Carla Buzasi, ibid The Huffington Post UK also functions as a news aggregator and links to news content hosted on other websites, as well as hosting blogs for the discussion and dissemination of opinion.

¶4.19 Ms Buzasi gave evidence on the importance of trust to the Huffington Post UK, and particularly to its reputation as a news source. This has informed editorial and management decisions made around training and editorial guidelines.¹⁰⁵¹⁰⁵ p78, lines 8-18, Carla Buzasi, ibid It is therefore expected that all stories are verifiable and are not single sourced. However, Ms Buzasi acknowledged that there may be a limited number of circumstances in which single sourcing was acceptable, but it was not the rule.¹⁰⁶¹⁰⁶ pp79-80, lines 8-15, Carla Buzasi, ibid A similar emphasis on trust is placed on those news sites that the Huffington Post UK will link to.

¶Regulation of blogs

¶4.20 Blogs and other such websites are entirely unregulated. The Huffington Post UK is unique in having opted to subscribe to the PCC. It is the only solely online news provider to have elected to this and did so in September 2011. Ms Buzasi suggested that membership of the PCC was a natural next step for the Huffington Post UK as it had long abided by the terms of the Editors' Code of Practice. However, she expressed some frustration at that organisation's lack of consideration for online publications and intimated that the process of joining revealed flaws inherent in the existing system.¹⁰⁷¹⁰⁷ p92, lines 5-18, Carla Buzasi, ibid She noted that the Huffington Post UK was eventually categorised by the PCC as a regional newspaper although it is in reality a national online publication with a substantive readership.¹⁰⁸¹⁰⁸ p92, lines 9-12, Carla Buzasi, ibid

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¶4.21 By contrast, Ms Wright told the Inquiry that although she was aware of the PCC Code she saw no reason for Popbitch to be part of the system of self-regulation through the PCC. Instead, she said in response to questions from the Inquiry that she believed Popbitch's own system of internal or personal regulation was more effective and better suited to the needs of the organisation.¹⁰⁹¹⁰⁹ p54, lines 7-15, Camilla Wright, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Afternoon-Hearing-26-January-2012.pdf With regard to a future system of regulation for the press, Ms Wright was equivocal as to whether such a system would be something that Popbitch would consider C voluntarily signing up to, the detail of that system depending. Ms Wright said that she would need to determine whether that system of regulation would be useful to Popbitch.¹¹⁰¹¹⁰ p67, lines 15-18, Camilla Wright, ibid

¶4.22 With regard to the oversight and regulation of content published by third parties, views of the Huffington Post UK to hosted and other user generated content on its site are broadly typical of other hosting sites. The Huffington Post UK does not pre-moderate or edit that content. Indeed, Ms Buzasi has said that:¹¹¹¹¹¹ p83, lines 17-21, Carla Buzasi, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of- Morning-Hearing-8-February-2012.pdf

"We want to have their personalities shine through on their blogs but there is a framework to ensure that we're – or our bloggers are complying with the law."

¶4.23 Mu Buzasi said that a small number of comments were routed through a filter which may pick up certain word combinations or profanities. These were then directed to a moderator for review.¹¹²¹¹² p84, lines 16-24, Carla Buzasi, ibid Comment that was flagged by users was also directed to a moderator for review.¹¹³¹¹³ p84, lines 21-22, Carla Buzasi, ibid

¶4.24 Ms Buzasi made clear that it was her firm belief that micro bloggers and small non-commercial bloggers should exist outside any formal system of regulation. She regards this freedom from regulation as a necessary condition for the nurture of creative talent and encouragement of new media enterprises, particularly if there are substantive costs associated with that system.¹¹⁴¹¹⁴ p89, lines 3-22, Carla Buzasi, ibid

¶4.25 Google is by some margin the largest publisher of third party content to have given evidence to the Inquiry. Specifically, Google hosts user generated content through its Blogger.com service. The service hosts blogging sites, and now hosts more than 1 trillion words. That total increases at rate of over 250,000 words every minute.¹¹⁵¹¹⁵ p109, lines 10-14, Daphne Keller, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Morning-Hearing-26-January-2012.pdf Its attitude towards the content it hosts is markedly similar to that of the Huffington Post UK. All content hosted through the service must comply with the terms of use. Beyond this, Google does not exercise any editorial control over the content it hosts on its blogger service.¹¹⁶¹¹⁶ pp111-112, lines 7-11, David John Collins, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Morning-Hearing-26-January-2012.pdf It does, however, provide a notice and take down service. Google's legal Director, Daphne Keller, has said that while a blogger service is available only through the .com domain, Google will take steps to ensure that content originating from a given jurisdiction is compliant with local law, if it receives a complaint about the content in question.¹¹⁷¹¹⁷ pp109-110, lines 20-15, Daphne Keller, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript- of-Morning-Hearing-26-January-2012.pdf

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¶Funding models

¶4.26 Many blogs sites now run on a commercial basis. The largest blog sites are increasingly funded either in their entirety or in part by advertising, as is the case with both Popbitch and Guido Fawkes. Although the approach to what appears on the website or blog will vary from site to site, the technical costs associated with running a site of this sort are relatively low, and C barriers to entry to the market for both new players, be they individuals or much larger firms, are similarly low. Effectively, anyone with access to the Internet can set up a blog and seek to reach readers.

Social networking sites

¶5.2 Although there is limited news provision in the terms that are relevant to this Inquiry on pure social networking sites, all social networks provide opportunities for individuals to disseminate and discuss news, information and comment. Indeed, everyday use of the Internet is increasingly characterised by the use of social networking sites and other social media. Their growth has been little short of phenomenal. Ten years ago there were no social networks; now the largest social networking site, Facebook, has over 800m users worldwide (although Facebook has recently suggested that as many of 100m of these accounts may be either dormant, fake or used for questionable purposes). The rise of Twitter has been similarly rapid. Founded in 2006, it now counts over 100 million active users each month, sending a billion tweets every four days.¹¹⁸¹¹⁸ pp92-93, lines 25-9, Colin Crowell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of- Morning-Hearing-7-February-2012.pdf Perhaps most astonishingly (and for this Inquiry of concern to those who may be the subject either of Tweets that breach privacy or indeed the criminal or civil law), is the speed with which a message might be propagated. Colin Crowell, Head of Global public Policy for Twitter Inc, noted that during the 2012 Superbowl, Twitter processed 12,000 tweets per second.¹¹⁹¹¹⁹ p105, lines 3-4, Colin Crowell, ibid

¶5.3 Increasingly newspapers themselves not only use the pages of social networking sites to disseminate news, but also provide platform friendly applications, to enable the application to be accessed through the specific social media. However, it is worthy of note that despite their extraordinary growth, as with most blogs, in the main few tweets or social network pages are read by very large numbers of people. Although a very small number of tweeters are followed (though not necessarily read) by very large numbers of people, and such may at times have significant impact (the Inquiry has heard evidence from Stephen Abell of the PCC of the phenomenon of Fry-bombing),¹²⁰¹²⁰ pp60-61, lines 19-4, Stephen Abell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Afternoon-Hearing-30-January-2012.pdf it should not detract from the fact that most tweets are read by very few people. The television personality and actor, Stephen Fry, one of the most prolific celebrity tweeters has over 5 million Twitter followers.

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¶5.5 It is in this regard that Twitter has been the focus of some interest to the Inquiry because of the role played by users in identifying individuals who had been the subject of privacy injunctions. Twitter allows members to operate anonymously, or under a pseudonym,¹²¹¹²¹ p94, lines 6-7, Colin Crowell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of- Morning-Hearing-7-February-2012.pdf and it is also possible that the company itself may not know the real identity of any member.¹²²¹²² p98, lines 22-23, Colin Crowell, ibid However, Twitter has told the Inquiry that its rules forbid members from using the service for any unlawful purpose,¹²³¹²³ p96, lines 22-25, Colin Crowell, ibid and any material that is found by the company to contravene that policy can be taken down or removed.¹²⁴¹²⁴ p98, lines 6-9, Colin Crowell, ibid

¶5.6 In this respect Twitter is similar to other social media. Most social networking sites and publishers of user generated content operate acceptable use policies (AUPs) which set down guidelines for user behaviour on those sites and cover issues such as posting of offensive content and bullying. Where a policy is breached, material is removed and in some cases the user's profile is deleted.

¶5.7 Most recent trends in social network technology have been towards the concept of "real-time web" and "location based" services. The real time web service allows users to generate content, that is broadcast as it is being uploaded – the concept is potentially analogous to and may indeed come to challenge live radio and television broadcasts as well as traditional print media.

¶5.8 Indeed, the instant nature of social networking also differentiates it from more traditional media. Rebuttals and denials of allegations can take place instantly, helping if not to kill a story at least to provide the subject of the story with a voice and make users aware that the veracity of the allegation or story may be in doubt.

¶Consideration of the law

¶5.9 The major websites and providers of internet services, be they social networking sites or providers of other services or functionality, tend to operate under US law if that is where the company is based. However, as witnesses to the Inquiry representing Internet firms have sought to make clear, where services are targeted at a given jurisdiction, they will also seek to comply with local law. This can and does lead to conflicts of law, for example, where issues such as consideration of privacy and other related matters conflict with rights under the First Amendment of the American Constitution.

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¶Blogs and the consideration of the law

¶5.10 The Inquiry has heard much evidence in this regard. Ms Wright said that as Popbitch is published in the UK it abides by general law. This includes making efforts to ensure that content is not defamatory.¹²⁵¹²⁵ p51, lines 8-12, Camilla Wright, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Afternoon-Hearing-26-January-2012.pdf Ms Wright was keen to emphasise, echoing points made by other witnesses representing online publishers and Internet businesses, that Popbitch sought to obey the local law in each of the jurisdictions in which it operated.¹²⁶¹²⁶ p67, lines 9-12, Camilla Wright, ibid Asked by Counsel to the Inquiry whether she considered the privacy of individuals about whom she writes, Ms Wright said:¹²⁷¹²⁷ p52, lines 10-16, Camilla Wright, ibid

"In era where injunctions have been such a much-talked about thing, that obviously has to be a consideration. I think if I could put it this way, Popbitch is an entertainment product, therefore we are trying to do no more than poke fun in the world of celebrity….. We get a lot of stories in [sic] which we don't print, which are things like somebody's gone to rehab, somebody has cancer, or it's about their children."

¶5.11 Ms Wright also said that consideration of privacy issues was more important to Popbitch than it once was. In evidence she referred to the example of Victoria Beckham's pregnancy, noting that at the time the pregnancy was widely discussed, and that although Popbitch were the first publishers to write about the story, the fact of that pregnancy was no secret. However, Ms Wright has said further:¹²⁸¹²⁸ p52, lines 10-16, Camilla Wright, ibid

"I would be I think since then much more careful about making sure that a pregnancy was beyond twelve weeks before – in this case, this was that as well, but I would be very careful about doing that."

¶5.12 Mr Staines provided different and interesting evidence in relation to legal accountability and enforcement, particularly in relation to legal jurisdictions, that illustrates well the problems in respect of the application of national law by online publishers. Mr Staines was candid about this. He said that the servers used by the Guido Fawkes site are located in the USA. The site was previously hosted by Google on the Google free blogger system but, as Mr Staines explained, was moved when Google "became more willing to give in to legal threats."¹²⁹¹²⁹ p103, lines 1-2, Paul Staines, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of- Morning-Hearing-8-February-2012.pdf Mr Staines said by way of further explanation:¹³⁰¹³⁰ p103, lines 3-5, Paul Staines, ibid

"I thought it be a good moment to switch from them to a hosting provider who was robust and would stand up for my First Amendment protections."

¶5.13 This switch from Google to another blog host was made in order to make it more difficult for content Mr Staines had published to be challenged through the UK courts; he cited the experience of Wikileaks as a sufficient justification for this course of action.¹³¹¹³¹ ibid Further, Mr Staines stated that although he had been threatened with legal action on a number of occasions, no such action had been successfully prosecuted. Mr Staines also made clear that he has ignored UK Court decisions without adverse consequences.¹³²¹³² p103, lines 3-5, Paul Staines, ibid

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¶5.14 He gave the specific example of a memorandum prepared by Merrill Lynch setting out concerns at the future prospects of Northern Rock which suggested that the eventual cost to the taxpayer might be as much as £50bn.¹³³¹³³ p106, lines 19-23, Paul Staines, ibid Mr Staines said that he uploaded the memo in question onto a number of overseas servers to circumvent injunctions issued by the law firm Carter Ruck.¹³⁴¹³⁴ p107, lines 2-8, Paul Staines, ibid

¶5.15 The attitude of Mr Staines revealed in evidence with regard to compliance with national law was unique among witnesses from online businesses who have given evidence to the Inquiry. More typical were those of the Huffington Post UK, which have already been partly C addressed. Ms Buzasi was clear that the Huffington Post UK abides by UK law. Under the terms of use, users of the Huffington Post UK comment boards and blogs must undertake not to post anything that might be illegal. Users must also provide personal details, which means that legal orders or proceedings can be enforced should either legal action be brought or an injunction be imposed.¹³⁵¹³⁵ p85, lines 17-19, Carla Buzasi, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of- Morning-Hearing-8-February-2012.pdf However, she also explained that the Huffington Post UK was not able to review and "pre-moderate" potentially libellous or defamatory comment, a theme that was taken up by other witnesses to the Inquiry.¹³⁶¹³⁶ p85, lines 14-26, Carla Buzasi, ibid Ms Buzasi suggested that the inability of the Huffington Post UK to make adjudications in such matters is, to some extents, mitigated by provisions made for the correction of inaccurate or potentially actionable material through the prominent provision of "send a correction button"; the site also operates what Ms Buzasi has referred to as a "robust" notice and take down process.¹³⁷¹³⁷ p86, lines 6-11, Carla Buzasi, ibid

Other providers

¶6.1 Mr Crowell made clear that it would be both technologically and physically impossible for Twitter to pre-moderate the user-generated content hosted by Twitter, in this case tweets, and adjudicate on their potential illegality.¹³⁸¹³⁸ p102, lines 5-11, Colin Crowell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of- Morning-Hearing-7-February-2012.pdf In this respect, the position of Twitter is markedly similar to that of both Google and Microsoft in relation to user-generated content. Articulating the position of Google with regard to compliance in this area, Ms Keller explained that given the volume of material generated by third parties that Google either indexes, searches or hosts depending on the relevant Google service or function, it is impossible for Google to pre-moderate that content in any way or, to make adjudications as to whether content is legal or not.¹³⁹¹³⁹ p76, lines 8-22, Daphne Keller, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Morning-Hearing-26-January-2012.pdf Ms Keller has made clear that both the volume and nature of the content make such decision making practically impossible. She told the Inquiry that such filtering is also technically impossible and would also run the risk of legal challenge if content that had been posted entirely legally were removed inadvertently as a consequence of such filtering.¹⁴⁰¹⁴⁰ pp101-102, lines 7-19, Daphne Keller, ibid

¶6.2 However, Mr Crowell was keen to stress that recent technological changes since the start of 2012 have enabled Twitter to withhold tweets within a given jurisdiction. This will enable Twitter to comply more effectively with differences in local law in different jurisdictions.¹⁴¹¹⁴¹ p106, lines 5-14, Colin Crowell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of- Morning-Hearing-7-February-2012.pdf Mr Collins also provided further evidence of Google's evolving policies with regard to compliance with national law. He said that Google services targeted at a particular country comply with local law and that this applies as much to privacy and other related matters as it does to other areas of law.¹⁴²¹⁴² p69, lines 8-20, David John Collins, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Morning-Hearing-26-January-2012.pdf By way of example, Mr Collins explained that Google policy on privacy in the UK was shaped through an ongoing dialogue with the ICO, which had provided relevant advice.¹⁴³¹⁴³ p69, lines 8-20, David John Collins, ibid Ms Keller explained that the use of the .co.uk domain name underpinned the provision of services to the UK as well as compliance with the local law.¹⁴⁴¹⁴⁴ pp73-74, lines 13-17, Daphne Keller, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Morning-Hearing-26-January-2012.pdf

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¶6.3 Ms Keller also explained the number of routes through which an individual might seek to remove material made available through Google services. It is notable, and indeed unfortunate

¶– although given the technological constraints understandable – that in each example the burden of effort lies with the injured party. Ms Keller explained that webmasters (those who author and maintain websites) are able to request that their site is not indexed and will therefore not appear in searches.¹⁴⁵¹⁴⁵ p78, lines 7-11, Daphne Keller, ibid Ms Keller also said that this particular approach is in the view of Google the most effective means of getting content removed. Google also provides a "remove content from Google" service, which users may use to alert staff to potentially illegal content which will be taken down if it is understood not to comply with UK law.¹⁴⁶¹⁴⁶ p79, lines 6-12, Daphne Keller, ibid Google has adopted a similar, expedited approach in relation to content that is in breach of copyright.¹⁴⁷¹⁴⁷ p88, lines 1-24, Daphne Keller, ibid

enforcement

¶7.1 Despite the efforts made to comply with national law, it is clear that the enforcement of law and regulation online is problematic. Although the law with regard to online content is clear, and UK hosted content is by and large compliant, the ability of the UK to exercise legal jurisdiction over content on Internet services is extremely limited and dependent on many things (explored below) which are rarely aligned. These include: the location of the service provider; the location of the servers on which material is held; and international agreements and treaties.

¶7.2 Internet Service Providers offering services to UK customers will block content that has been declared illegal. They are, however, understandably unwilling to make decisions on whether content may or may not be illegal or to take decisions where there are grey areas in law. This has been particularly apparent in cases of alleged defamation, where ISPs and content providers have historically been unwilling to remove content without a court decision. Whilst the position of the ISPs and content providers may be understandable – issues clearly arise as to their ability to decide on the veracity of an allegation – in some cases considerable damage may have been done to the subject of those allegations before a judgment has been reached and the defamatory content consequently removed.

¶7.3 Most successful attempts to induce service providers of any sort to take enforcement action in relation to content are either through agreement, or dependant on case-specific court orders. In his evidence to the Inquiry, Mr Crowell (as well as representatives from Microsoft and Google) said that Twitter would enforce orders made by UK courts, in so far as they might apply to UK users, on a case by case basis.¹⁴⁸¹⁴⁸ p23, lines 21-24, Colin Crowell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of- Morning-Hearing-7-February-2012.pdf In practice, this means that for Twitter to remove a defamatory tweet that was re-tweeted, a court order would be needed in relation to every relevant tweet by every individual unique user who repeated that defamatory content.¹⁴⁹¹⁴⁹ pp103-104, lines 5-5, Colin Crowell, ibid

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¶7.4 Ms Keller has also made clear that, in cases of alleged defamation, it is Google policy in most cases only to remove material from a given service if the complainant was able to provide a legal judgment in support of their claim. However, Ms Keller acknowledged that while such material would be removed from a UK search, it might still be found through Google.com if the material in question was not in breach of American law.¹⁵⁰¹⁵⁰ p85, lines 9-20, Daphne Keller, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Morning-Hearing-26-January-2012.pdf This means in practice that, C in order to have material removed from searches in multiple jurisdictions, a legal application would have to be made in each relevant jurisdiction. Ms Keller said in this respect that she hopes: "this would not be a difficult thing to do."¹⁵¹¹⁵¹ p86, lines 22-23, Daphne Keller, ibid It is notable that much as Twitter requires a court order in respect of each individual user, Google require such an order in relation to individual URLs.

¶7.5 Both examples are also in counterpoint to the number of instances where UK legislation and decisions by UK courts are simply ignored, as they are unenforceable. Content providers headquartered in the United States will also strenuously defend rights to free speech under American law and indeed may themselves be at risk of prosecution if they remove allegedly defamatory or potentially illegal content ahead of a court decision. This position is not without legal underpinning under European Law. Under Article 15 of the European eCommerce Directive which sets out the regulatory framework for trade through the Internet, ISPs are not legally responsible for the content they carry over their pipes.¹⁵²¹⁵² pp111- 112, lines 8-4, David John Collins, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Morning-Hearing-26-January-2012.pdf This defence is known as mere conduit. Mr Collins of Google described the apportionment of responsibilities between publishers and host thus:¹⁵³¹⁵³ pp111- 112, lines 8-4, David John Collins, ibid

"Firstly, there is a very clear set of regulations which apply to technical intermediaries hosting platforms. It's called the E-commerce Directive and it does place a number of responsibilities on us around removal of content. I know that you're very aware of it. It's important to make the distinction between – in the system that you've outlined, it's important to make the decision between someone who provides a hosting platform for other people to create and post content, and a publisher. Blogger.com or other products that are – attempt to form a community around the product, YouTube, et cetera, they don't make us a publisher; we remain a hosting platform. So I think whatever system that you devise, it's important to retain that distinction, because not only is there already a very clear set of regulations around those principles placing responsibilities on us, but it retains a very essential balance online, which is: where does that responsibility lie? We have our responsibilities, which we fulfil; the person that produces and uploads that content has his or her responsibilities as well."

¶7.6 Mr Staines also described with some colour the difficulties that an individual or company might encounter in trying to have content removed from the internet:¹⁵⁴¹⁵⁴ p107, lines 2-8, Paul Staines, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of- Morning-Hearing-8-February-2012.pdf

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"I think it is impossible for them to do anything, I would basically upload it to a free hosting service after the close of business hours, so if the law firm was contacting Yahoo India, they would find that there would be no one at home and it would be up on that website until the next day at the very least."

press photographers

¶8.1 Press photographers are another source of news material. Their actions and conduct are C covered elsewhere in this Report as appropriate, so I will restrict myself to a very few comments in this regard. Based on figures provided by the British Press Photographers Association (BPPA), it is estimated that there are around 800 press photographers in the UK. Of these around a quarter are directly employed by newspapers or agencies, around 12% are employed on fixed term or rolling contracts, around 18% work through agencies as freelancers and the remaining 45% are entirely freelance.¹⁵⁵¹⁵⁵ p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Submission-by-The-BPPA1.pdf

¶8.2 Those photographers who are directly employed, whether by newspapers or by agencies, might expect to be subject to the Editors' Code of Practice. Indeed, the Inquiry has been told by witnesses both from picture agencies and newspapers that the expectation is that press photographers would abide by the terms of the Editors' Code of Practice.¹⁵⁶¹⁵⁶ Part F, Chapter 6 for a fuller discussion Those who operate on a freelance basis are not subject to any regulation beyond the law, as it applies to everyone.

¶8.3 Much of the work undertaken by press photographers involves arranged photo shoots of one sort or another. However, press photographers obviously do also work by waiting for potential subjects and hoping to get pictures of them. This inevitably gives rise to the risk that photographs will be taken in situations where the subject might prefer not to be photographed and, as is made clear¹⁵⁷¹⁵⁷ Part F, Chapter 6 elsewhere in this report, may even be subject to harassment or distress.

¶8.4 The death of Diana, Princess of Wales,¹⁵⁸¹⁵⁸ Part D, Chapter 7 in an accident that occurred while the car in which she was travelling was being pursued at high speed by a number of press photographers in 1997 brought the role and behaviour of press photographers very much to public notice. Since then, UK newspaper editors have been committed by the Editors' Code of Practice not to publish images that are taken in contravention of the Code. The responsibility for checking whether the Code of Practice has been breached in relation to any specific image sits with the newspaper concerned.

¶8.5 The market for celebrity and news photographs is now a global one. A picture that might be turned down by a UK editor as not being consistent with the Code might well be accepted by non-UK newspapers, broadcasters or websites. Recent cases involving Prince Harry and the Duchess of Cambridge are instructive and are described elsewhere in this Report.¹⁵⁹¹⁵⁹ Part F, Chapter 5 The largely freelance nature of the press photography business means that there is a high level of competition among photographers to get the best picture.

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¶Chapter 4 plurality

"I think sometimes – a lot of the time it isn't necessarily the size of the newspaper group, it's the strength of voice of the paper. I mean, actually, the Daily Mail is an incredibly sort of powerful voice in the nation's politics because it's a very strong product, it puts its voice very powerfully, and that's not related really to its market

What is plurality and why does it matter?

¶1.1 There is a generally held view that the media is of central importance for a healthy, well-informed democracy and therefore control of the media should not be concentrated in too few hands. This is based on a concern that a small number of media owners could have too much influence in terms of content and, in particular, agenda setting. Policy and legislation have been designed overall to achieve a range of different media "voices", which enable consumers to have access to a range of views, which helps them to actively participate in the democratic process in the widest sense.

¶1.2 The Communications Act 2003 takes two different approaches to the nature of the plurality that is considered important. The first is the need for a "sufficient plurality of views in newspapers in each market for newspapers"²² Communications Act 2003 s375 (1)(2B) http://www.legislation.gov.uk/ukpga/2003/21/section/375 and the second is the need for "there to be a sufficient plurality of persons with control of the media enterprises serving [every] audience [in the UK]."³³ Communications Act 2003 s375 (1)(2C)(a) http://www.legislation.gov.uk/ukpga/2003/21/section/375 The difference between a plurality of views and the plurality of persons with control of media enterprises is clear. The rationale as to why the first should apply in relation to newspapers and the second in relation to media enterprises is less clear. In any event, the media market has moved on considerably since the Communications Act 2003 was passed and the nature and number of media enterprises serving markets in the UK has changed. Witnesses to the Inquiry took various approaches to what they understood by the need for plurality in the media.

¶1.3 Ofcom defines plurality with reference to the desired outcome of a plural market:⁴⁴ p11, para 3.8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Ofcom-Measuring- Media-Plurality1.pdf

(a) "ensuring there is a diversity of viewpoints available and consumed across and within media enterprises; (b) preventing any one media owner or voice having too much influence over public opinion and the political agenda." (emphasis added)

¶1.4 Professor Chris Megone, Professor of Inter Disciplinary Applied Ethics at the University of Leeds, described both the benefits that a free press brings and the risks of a few voices dominating the public debate:⁵⁵ p2-3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Professor-Christopher- Megone.pdf

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"freedom of individual expression may be served to some extent by a free press in that such a press provides a vehicle for the expression of opinion in leader and comment columns. Such free expression can contribute to informed citizens through its role in the cut and thrust of ideas. However clearly there are only a limited number whose ideas are expressed in this way, and even with letters pages, and invited contributions from politicians and the like, the number able to express themselves is very small." and later:

"This argument could be taken further and it could be said that the public interest C in freedom of expression can even be adversely affected by a free press, if certain other conditions hold such that some voices get much more prominence than others. In those conditions the power of the press as a medium of expression may lead to certain views dominating the public sphere and other views being squeezed out. So the public interest in freedom of self-expression, or freedom of opinion, is served by a free press, but only to some extent, and only if the structure of the press allows for sufficient diversity."

¶1.5 This approach to both the diversity of views available and the influence wielded seems to be generally accepted. Robin Foster, an independent adviser on regulatory policy and strategic issues in the communications sector, described two aspects of plurality that he considered important: to make sure that there was a reasonable wide range and diversity of news and opinion available to the public, and to make sure that no single one of those news providers became so powerful that they had too much of an influence on opinion-forming and the political agenda.⁶⁶ p3, lines 4-10, Robin Foster http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of- Afternoon-Hearing-17-July-2012.pdf Professor Steven Barnett, University of Westminster, said that plurality must encompass both a sufficient number of competing media enterprises and (separately) the prevention of an unhealthy accretion of power by any single enterprise.⁷⁷ p1, para 1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/10/Submission-from-Professor-Steven- Barnett-on-plurality.pdf

¶1.6 The rationale for requiring plurality within the media and the different dimensions of it that are important seem uncontroversial. However, it is also necessary to say what the scope of media plurality should be. Ofcom notes that both they and other regulatory authorities have concentrated to date on news and current affairs, but that this is not required by the legislative framework.⁸⁸ p12, para 3.11, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Ofcom-Measuring- Media-Plurality1.pdf There are arguments for broadening the scope, which are considered later in this Report.⁹⁹ Part I, Chapter 8 Historically, regulators have not really looked beyond news and current affairs when considering plurality.

approaches to securing plurality

¶2.1 Attempts to secure plurality have tended to rely on four complementary approaches. First, where broadcast media are concerned, it can be argued that the existing rules around accuracy and impartiality should counter concerns about concentration of ownership. The Department of Culture, Media and Sport (DCMS) argues that this is true up to a point, but it is difficult to regulate the coverage and prominence of stories. Therefore, there is still considerable scope for influencing the agenda by the extent to which particular stories are covered or not.¹⁰¹⁰ p2, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/DCMS-submission_Narrative-on-media- ownership.pdf A wider range of media owners makes it harder for one or two large owners to distort the agenda in a way which suits their own purposes.

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¶2.2 Second, there have been specific rules constraining the ability of any one person or company to own too large a proportion of the broadcast market, and restrictions on the extent to which any one person or company can own both a national newspaper and a national terrestrial television channel or a local newspaper and a local television channel. These rules and how they have changed over time are outlined below.

¶2.3 Third, there is general competition law. One of the key aims of competition law is to ensure that no company has such a position of power within a market that it can abuse that power, for example to force competitors out of the market to the detriment of consumers. Competition law is designed to reduce concentration of market power and, therefore, will generally produce outcomes which support plurality. However, competition rules are also designed to prevent abuse of market power; it is possible that an owner could have a dominant position which he did not abuse in competition terms (and which will therefore be allowed under the competition regime) but which was deemed undesirable in relation to plurality. It is also likely that competition rules are less able to prevent unacceptable levels of cross-media ownership where each market may be seen as distinct for competition purposes. Yet this form of ownership is sometimes seen as being of most concern because it could allow an owner to promote an agenda across a number of platforms which could be more influential than involvement in just one. This was the position originally taken by the Government in relation to media mergers when the 2003 Communications Bill was published.

¶2.4 The process by which that position changed and how the current provision in the 2003 Act relating to media mergers was introduced is fully documented later in the Report.¹¹¹¹ Part I, Chapter 5 The result was that the Communications Act 2003 includes provisions to allow the Secretary of State to take public interests considerations relating to plurality into account in proposed media mergers.

¶2.5 The media ownership regime takes as its starting point the position that a variety of owners will represent a variety of different viewpoints. This cannot be taken as axiomatic as owners could have a very similar set of views and values. It is nevertheless likely that the greater the number of owners, the greater number of views. Moreover, it is difficult to regulate for different points of view, so ownership restrictions act as an effective "proxy" for plurality.¹²¹² p3, para 5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/DCMS-submission_Narrative-on-media- ownership.pdf

¶2.6 Media ownership rules act as a constraint on the normal workings of the market, so successive Governments have thought it important to strike an appropriate balance between the needs of plurality and the needs of the wider economy, and to ensure that media ownership rules are no more burdensome than necessary. As more and more services become available on different platforms, concerns over ownership have diminished to some extent and greater liberalisation has been permitted. The DCMS "Consultation on Media Ownership Rules" in November 2001 said:¹³¹³ p3, para 5, ibid

"The current ownership rules are being overtaken by a changing media landscape. In devising new, forward-looking legislation, we have two main aims. We want to encourage competition and economic growth, by being as deregulatory as possible. However, we must also allow the media to continue to perform its vital role in democratic society, as a forum for public debate and opinion."

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the history of media ownership rules in the uK from the 1990s

¶Legislative background

¶3.1 DCMS has very helpfully provided a detailed history of the Media Ownership Rules in the UK from the 1990s to the most recent developments; this can be viewed as part of the evidence submitted to this Inquiry.¹⁴¹⁴ ibid For the purposes of the Report I merely summarise the key points.

¶3.2 The constitutional framework for UK commercial terrestrial television and local radio sectors during the 1980s was provided by the Broadcasting Act 1980 and consolidated in the Broadcasting Act 1981.¹⁵¹⁵ lTC Notes, The Broadcasting Acts of 1990 and 1996, June 2003 The Independent Broadcasting Authority (IBA) had the function of providing television and radio services additional to those of the BBC. It therefore acted as both broadcaster and regulator. It did this by entering into contractual arrangements with ITV and Independent Local Radio franchisees, whereby the contractors agreed to supply programmes for their regions and the IBA agreed to transmit them. The IBA had wide powers to preview programmes and approve schedules in advance of transmission. The issue of ownership restrictions did not therefore arise as providers of commercial TV and radio services were not owners of licences but contractors to the IBA.¹⁶¹⁶ pp3-4, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/DCMS-submission_Narrative-on- media-ownership.pdf

¶3.3 The Broadcasting Act 1990 made significant changes to this regime by abolishing the IBA and establishing the Independent Television Commission and the Radio Authority instead. The main effects of the Act were as follows:¹⁷¹⁷ p4, para 7, ibid

¶(a) The previous contract-based regulatory system was replaced by a licensing system, with each licence subject to certain conditions and penalties for non-compliance;

¶(b) Licences for certain services were to be awarded by the ITC and RA through competitive tender to the highest bidder after a quality threshold and sustainability test had been passed, except in exceptional circumstances;

¶(c) Cable and satellite programme licences were to be issued on compliance with the ITC codes' consumer protection requirements;

¶(d) Channel 4 was to be provided by a new non-profit making body, the Channel Four Corporation, under licence from the ITC; and

¶(e) Provision was made for the licensing of a new terrestrial television service, Channel 5 (which came to air in 1997).

¶3.4 The Broadcasting Act 1990 introduced ownership restrictions that licences could be held and traded. It also introduced an upper limit on any person owning more than two Regional Channel 3 licences.¹⁸¹⁸ Channel 3 network includes 15 Regional licences The Broadcasting Act 1996 imposed a limit of one licence where the licence-holder's total audience share was over 15%, and provided that a national licence could only be held for either Channel 3 or Channel 5.¹⁹¹⁹ p5, paras 8-9, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/DCMS-submission_Narrative-on- media-ownership.pdf More detail can be found in annex A to the submission http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/07/DCMS-submission_Annex-on-media-ownership-rules-from-the-Broadcasting-and-Communications- Act.pdf

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¶3.5 The Communications Act 2003 repealed the two rules which prevented the joint ownership of National Channel 3 and Channel 5, and removed stand-alone accumulation limits for all television licences. ITV plc (which resulted from the merger of Carlton and Granada in 2004) now holds all but three of the 15 Regional Channel 3 licences (those being UTV and Northern and Central Scotland).²⁰²⁰ p6, para 12, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/DCMS-submission_Narrative-on- media-ownership.pdf

¶Provision of broadcast news

¶3.6 Specific controls were introduced to ensure plurality of the provision of broadcast news. The Broadcasting Act 1990 allowed for the ITC to nominate news providers who would be eligible to provide news programmes for holders of Regional Channel 3 licences ('nominated news providers'). It was only possible to hold 20% of one nominated news provider, and each nominated news provider was only permitted to own up to 50% of a Regional Channel 3 licence (ie 50% of any company holding a Regional Channel 3 licence). The Broadcasting Act 1996 then made further provision for all holders of Regional Channel 3 licences to, as far as possible, appoint the same (single) news provider ('the appointed news provider').

¶3.7 The purpose of this provision was to ensure that high quality national and international news was carried across all Channel 3 regions at peak times by a single news provider. This was needed because Channel 3, unlike the BBC, was not a single network, but made up of a number of Channel 3 regions under different ownership. By requiring all Regional Channel 3 licence holders to select the same nominated news provider, from providers nominated for that purpose by the ITC, the rules guaranteed a nationwide competitor to the BBC's news services. In the Government's view, this competition served to underpin the impartiality of both services, guaranteeing plurality for viewers. Eventually the Communications Act 2003 lifted all restrictions on the ownership of nominated news providers, while retaining the requirement for all Regional Channel 3 licence-holders to appoint the same nominated news provider.²¹²¹ pp6-7, paras 13-17, ibid

¶Digital TV services

¶3.8 The Broadcasting Act 1996 introduced the licensing regime for digital TV and, at the same time, introduced certain ownership limits in relation to the number of digital licences that could be held. These rules were removed by the Communications Act 2003, consistent with its overall deregulatory approach, so there are now no explicit ownership rules in respect of digital TV services.²²²² pp7-8, paras 18-19, ibid

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¶Satellite and cable TV services

¶3.9 The Broadcasting Act 1990 placed no restrictions on cable and satellite licences. This may well have been because these services were not subject to the same spectrum constraints as analogue services. The Act did place requirements on original programming in respect of direct satellite services (DBS) holding UK licenses for broadcasting on UK frequencies. No such requirement was placed on the holders of other satellite licenses (non-DBS).²³²³ pp8-9, paras 20-23, ibid In practice, this meant that British Satellite Broadcasting was subject to this requirement, whilst Sky was not, giving a commercial advantage at the time to Sky in a market that proved not to be sufficient to support two satellite broadcasters. C

¶3.10 The Broadcasting Act 1990 also placed different ownership restrictions on DBS and non- DBS satellite services. National newspapers could not hold more than a 20% stake in a DBS broadcasting satellite channel. However, no such restriction was placed on newspapers owning non-DBS licences. The Government of the day explained that this was because the number of DBS licences was restricted by international agreement to five, whereas the number of non-DBS licences was not restricted and was likely to grow significantly. This made ownership of one or more such channels less of a significant issue in plurality terms.²⁴²⁴ pp9-11, para 24, ibid

¶Radio Analogue local radio

¶3.11 The Broadcasting Act 1990 placed an upper limit on ownership of 20 analogue local radio licences. In addition there was a calculation based on coverage area designed to ensure a minimum of seven owners across the UK. The Communications Act 2003 introduced a new system that would ensure at least three local owners in any area in addition to the BBC. This was subsequently changed to secure at least two, rather than three, local owners in addition to the BBC. Where there were only one or two local radio stations in an area all ownership restrictions were removed (subject to the local cross media ownership rule designed to ensure that there were not total local monopolies). Following a report from Ofcom in 2009, all local radio ownership rules were repealed by the Media Ownership (Radio and Cross Media) Order 2011.²⁵²⁵ pp11-13, paras 25-30, ibid

¶Analogue national radio

¶3.12 The Broadcasting Act 1990 placed restrictions on one person holding more than one of the three national analogue commercial radio licences. This rule was removed in the Communications Act 2003.²⁶²⁶ p13, paras 31-33, ibid

¶Digital radio

¶3.13 Under the Broadcasting Act 1996, a person was limited to one digital service licence or 15% of the total audience points (whichever was the higher) and was also disqualified from providing more than one non-simulcast local digital sound programme service on a single multiplex, unless there was another multiplex operating in the same geographical area. Following the Communications Act 2003, these rules were replaced by a new local points based regime; this mirrored the provisions of the analogue regime by placing a limit on digital radio licences of 55% of the points available in an area.²⁷²⁷ pp13-14, para 34, ibid

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¶Specific prohibitions on licence holding

¶3.14 There are restrictions on the holding of broadcasting licences by certain types or classes of owners. Historically there have been prohibitions on religious bodies holding broadcasting licenses. Over recent decades those restrictions have been significantly reduced, although religious bodies still cannot hold licences for Channel 3, Channel 5 or any national analogue radio licence.²⁸²⁸ pp14-15, paras 36-39, ibid The Broadcasting Act 1990 prevented local authorities from holding broadcasting licences. The Communications Act 2003 now allows local authorities to hold C broadcast licences for information purposes, and puts in place safeguards to prevent this from being exploited for political purposes.²⁹²⁹ p15, para 40, ibid The Broadcasting Act 1990 also prevented political parties from holding broadcasting licences (as there were concerns that they could not run a broadcasting company with sufficient impartiality). This restriction remains in place.³⁰³⁰ p15, para 41, ibid

¶3.15 The Broadcasting Act 1990 additionally prevented advertising agencies from holding broadcasting licences and this restriction has continued.³¹³¹ p16, para 42, ibid The Broadcasting Act 1990 also introduced some foreign ownership restrictions to non-European Economic Area (EEA) countries (it was not permitted to place restrictions on EEA companies and individuals), which were expanded upon by the Broadcasting Act 1996. Non-EEA companies could hold certain licences including for cable and satellite services. In 2002 the Government consulted on removing these restrictions and the matter was the subject of extensive debate. In the event, in circumstances fully described later in the Report,³²³² in Part H Chapter 4 the Communications Act 2003 did remove the restrictions and there is now no restriction on foreign ownership of any broadcasting licence, subject, of course, to other ownership restrictions.³³³³ pp16-18, paras 43-47, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/DCMS-submission_ Narrative-on-media-ownership.pdf

¶Cross media ownership

¶3.16 The position under the Broadcasting Act 1990 was:³⁴³⁴ pp18-19, para 48, ibid

¶(a) National newspaper owners were tightly limited in their holdings in terrestrial TV and radio, and in domestic satellite broadcasters.³⁵³⁵ para 2.8, Media Ownership The Government's Proposals, May 1995 Within each category they could hold up to 20% of one licence, and then up to 5% of any others. They were allowed full control of non-domestic satellite broadcasters "in order to encourage investment in an uncertain and high-risk enterprise". (By 1996 there were no domestic satellite broadcasters and the largest non-domestic satellite broadcaster was BSkyB);

¶(b) Local newspaper owners were less tightly controlled, in being allowed to own regional TV or local radio broadcasters, provided there was no significant overlap between the licence area and the paper's circulation area;

¶(c) National TV and radio (and regional Channel 3) broadcasters were limited to a 20% stake in national newspapers and non-domestic satellite licences; and

¶(d) There were no cross-media restrictions on ownership cable services (other than that satellite providers could not own more than 20% of a terrestrial TV or National Radio licence).

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¶3.17 The Communications Act 2003 revised these rules:

¶(a) Retention of the national rule concerning cross-media ownership between newspapers and ITV. This was expressed as follows: (i) no one controlling more than 20% of the national newspaper market may hold

any licence for Channel 3; (ii) no one controlling more than 20% of the national newspaper market may hold more than a 20% stake in any Channel 3 service; and (iii) a company may not own more than a 20% share in such a service if more than C 20% of its stock is in turn owned by a national newspaper proprietor with more than 20% of the market.

¶(b) Retention of a parallel local rule: no one owning a regional Channel 3 licence may own more than 20% of the local/regional newspaper market in the same region;

¶(c) Stricter application of the local radio ownership rules where potential owners had other media interests. The effect was to ensure that, in these cases, there would be a minimum of three media owners in each area across TV, newspapers and radio;

¶(d) A local cross-media rule (the "local monopolies" rule) designed to ensure that there were no complete monopolies in areas with only one or two local radio stations;

¶All other cross-media ownership rules were repealed.

¶Review of ownership rules

¶3.18 The Communications Act 2003 requires Ofcom to review all media ownership rules at least every three years. Ofcom makes any recommendations for further reform to the Secretary of State, who can amend or remove rules by secondary legislation. The first review in 2006 recommended no change.³⁶³⁶ http://stakeholders.ofcom.org.uk/market-data-research/other/media-ownership-research/rulesreview In its second report in November 2009,³⁷³⁷ http://stakeholders.ofcom.org.uk/consultations/morr/statement/ Ofcom concluded that that national "20/20" rule should be retained and that the local cross media ownership rules should be liberalised so that the only restriction remaining would be on ownership of all three of: local newspapers (with 50% plus local market share); a local radio station; and a regional Channel 3 licence.³⁸³⁸ pp21-22, para 54, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/DCMS-submission_Narrative-on- media-ownership.pdf According to Ofcom:³⁹³⁹ p22, para 56, ibid

"this liberalisation will increase the flexibility of local media to respond to market pressures. Consumers still rely on television, radio and press for news, so going further to complete removal of the rules could reduce protections for plurality."

¶3.19 On 8 July 2010, the Secretary of State asked Ofcom to revisit its advice on retaining the "local monopolies" rule. Ofcom replied on 29 July and published a fuller version of the reply in August.⁴⁰⁴⁰ http://stakeholders.ofcom.org.uk/binaries/consultations/morr/response-localmedia/ Local Media Final Document. pdf It recognised that there had been some changes in circumstances since the original report but that a decision on whether to remove this one remaining local rule "is a matter of judgement and one which is rightly made by Government and Parliament". Having considered the matter further, the Secretary of State concluded that the remaining rule should also be removed; this was given effect by the Media Ownership (Radio and Cross Media) Order 2011.⁴¹⁴¹ pp22-23, para 57, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/DCMS-submission_Narrative-on- media-ownership.pdf

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¶3.20 The Government's view was that local media ownership rules (for television, radio and newspapers) placed unnecessary limitations on ownership within commercial media; that the rules were no longer appropriate in a converging digital world; and that removing regulatory barriers would help established industries adapt to new environments. The deregulation of the local media ownership regulations now enables partnerships between local newspapers, radio and Channel 3 television stations to promote a strong and diverse local media industry.⁴²⁴² p23, para 58, ibid

¶Media plurality public interest test

¶3.21 The process by which the media plurality public interest test was inserted into the Communications Bill, and the rationale behind it, is also fully outlined later in the Report.⁴³⁴³ Part I, Chapter 5 These provisions mean that the Secretary of State can ask Ofcom and, if necessary, the Competition Commission to investigate any merger which could have a damaging effect on plurality, diversity or standards.⁴⁴⁴⁴ p23, para 59, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/DCMS-submission_Narrative-on- media-ownership.pdf

¶3.22 In applying the test the Secretary of State takes into account the need for:

¶(a) a sufficient plurality of persons with control of media enterprises serving any audience;

¶(b) a wide range of high quality broadcasting that appeals to different tastes and interests; and (c) a genuine commitment to Ofcom's standards code.

¶3.23 The Government produced further guidance on how the public interest test would be operated in practice. Partly due to Iobbying from industry, Ministers indicated that they were not minded to exercise these powers where media ownership rules continued to apply or where, before the passage of the Communications Act 2003, no media ownership restrictions applied.⁴⁵⁴⁵ p24, para 61, ibid

¶3.24 The request to Ofcom is triggered by an intervention notice issued by the Secretary of State which specifies a "media public interest consideration''.⁴⁶⁴⁶ depending on the type of merger, the power to issue such a notice may arise under sections 42(2), 59(2) or 67(2) of the Enterprise Act 2002 A media public interest consideration is any consideration which, at the time of the giving of the European intervention notice concerned, is specified in s58(2A) to (2C) of the Enterprise Act 2002 or, in the opinion of the Secretary of State, is concerned with broadcasting or newspapers and ought to be specified in s58 of the Act (ie would need to be "finalised" by statutory instrument).

¶3.25 The currently recognised media public interest considerations are:⁴⁷⁴⁷ Communications Act 2003 http://www.legislation.gov.uk/ukpga/2003/21/Section/375

¶(a) s58(2A): the need for accurate presentation of news and free expression of opinion in newspapers;

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¶(b) s58(2B): the need for, to the extent that it is reasonable and practicable, a sufficient plurality of views in newspapers in each market for newspapers in the UK or a part of the UK;

¶(c) s58(2C)(a): the need, in relation to every different audience in the United Kingdom or in a particular area or locality of the United Kingdom, for there to be a sufficient plurality of persons with control of the media enterprises serving that audience;

¶(d) s58(2C)(b): the need for the availability throughout the United Kingdom of a wide range of broadcasting which (taken as a whole) is both of high quality and calculated to appeal to a wide variety of tastes and interests; and

¶(e) s58(2C)(c): the need for persons carrying on media enterprises, and for those with control of such enterprises, to have a genuine commitment to the attainment in relation to broadcasting of the standards objectives set out in s319 of the Communications Act 2003. These require, among other things, "that news included in television and radio services is reported with due impartiality and the impartiality requirements of s.320 are complied with" and that news is reported with "due accuracy".

¶Paragraph 7.24 of the guidance issued by the DTI identifies the following as relevant to this question: previous compliance with Ofcom standards, the behaviour of the media owner's other broadcasting enterprises, behaviour in other jurisdictions and compliance with other standards (including under self-regulatory regimes).⁴⁸⁴⁸ pp23-24, para 25.5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Ed- Richards.pdf

¶3.26 An enterprise is a media enterprise if it consists of or involves broadcasting;⁴⁹⁴⁹ s58A(1 ) but where the public interest concern is that as set out in s58(2C)(a) and a merger involves only one broadcasting company, a merger is still a media merger of media enterprises if the other company is a newspaper enterprise.⁵⁰⁵⁰ s58A (2). A newspaper company is an enterprise consisting in or involving the supply of newspapers (Section 58A(3)). A "newspaper" is a daily, Sunday or local (other than daily or Sunday) newspaper circulating wholly or mainly in the UK or in a part of the UK (Section 44(10))

¶3.27 Where there has been an intervention notice, Ofcom is required to report to the Secretary of State on whether, having regard only to the public interest consideration specified in the intervention notice, it is or may be the case that the merger may be expected to operate against the public interest. It is then for the Secretary of State to determine whether or not the merger should be referred to the Competition Commission for further review and, if necessary, consideration of remedies.⁵¹⁵¹ p24, para 25.7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Ed-Richards. pdf

¶3.28 There have only been two occasions on which the Secretary of State has issued an intervention notice in relation to a media merger. On both occasions, the public interest consideration was: "the need, in relation to every different audience in the United Kingdom or in a particular area or locality of the United Kingdom, for there to be a sufficient plurality of persons with control of the media enterprises serving that audience".⁵²⁵² p28, para 32.1, ibid

¶3.29 The first of these occasions, the completed acquisition by British Sky Broadcasting Group plc (BSkyB) of a 17.9% stake in ITV, was a UK merger. Ofcom considered the plurality public interest considerations and recommended a reference to the Competition Commission.⁵³⁵³ http://webarchive.nationalarchives.qov.uk/20101227023510/http:llwww.bis.qov.uk/files/file39607.pdf At the same time, the OFT advised that the transaction was a merger and that it was or may be the case that the merger may be expected to result in a substantial lessening of competition.⁵⁴⁵⁴ http://webarchive.nationalarchives.qov.uk/20101227023510/http://www.bis.,qov.uk/files/file39606.pdf The Secretary of State referred the case to the Competition Commission. The Competition Commission considered that the transaction raised competition issues, but not plurality issues, and on its recommendation the Secretary of State required BSkyB to sell shares so as to reduce its holding to below 7.5%. The decision was appealed to the Competition Appeal Tribunal and to the Court of Appeal; the Court of Appeal upheld the Competition Commission's decision.⁵⁵⁵⁵ p28, para 32.2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Ed-Richards. pdf C 3.30 The second occasion, the proposed acquisition by News Corporation of the shares in BSkyB it did not already own, was an EC merger.⁵⁶⁵⁶ This is considered in detail in Part I, Chapter 6

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history of the newspaper ownership regime Before the Communications Act 2003

¶4.1 DCMS has also very helpfully provided a history of the newspaper ownership regime.⁵⁷⁵⁷ http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/DCMS-submission_Narrative-on-newspaper- ownership.pdf I draw heavily on it and gratefully acknowledge the work that was put into it.

¶4.2 Since 1965 there has been a separate regime in place in respect of newspaper mergers. This was first introduced by then Monopolies and Mergers Act 1965, following the Report of the Royal Commission on the Press in 1962 ("the Shawcross report"). Shawcross concluded that control of the press was a matter of particular public sensitivity and that the increasing concentration of newspaper ownership in too few hands could stifle the expression of opinion and argument and distort the presentation of news. The Fair Trading Act 1973 (FTA) subjected most newspaper mergers to a stricter system of control than other mergers. The FTA required the Competition Commission (CC) to look at whether the transfer in question might be expected to operate against the public interest, taking into account all matters which appeared in the circumstances to be relevant. Any such transfer would be automatically void without the written consent of the Secretary of State.

¶4.3 Proprietors had to obtain prior consent from the Secretary of State for Trade and Industry (as was) before acquiring a newspaper (or newspaper assets) where the total paid-for daily circulation of the newspapers involved was 500,000 or more. The Secretary of State was required to refer newspaper applications to the CC for a detailed report before deciding whether or not to consent to the transfer. Exceptions to this rule meant that the Secretary of State:

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¶Communications Act 2003

¶4.4 The Communications Act 2003 was designed to replace the FTA regime with a streamlined and less burdensome process that focused regulatory action on those few newspaper transfers that appeared to raise competition or plurality concerns. Under the Communications Act 2003 there is no longer a requirement for the Secretary of State's prior consent to newspaper C transfers. The new regime applies to all transfers that satisfy the jurisdictional criteria for mergers in the Enterprise Act (broadly speaking, the turnover of the body being acquired exceeds £70m or the merger would result in market-share of 25% or more), meaning that the smallest local newspapers were removed from regulation altogether.

¶4.5 Where a takeover or merger does not meet the jurisdictional criteria it is still possible for the Secretary of State to intervene under the special public interest regime; this applies in any case where the newspaper to be acquired has a 25% share of a market in a substantial part of the United Kingdom.

¶4.6 The Secretary of State retains the power to refer those cases that involve the public interest in plurality for wider investigation by the CC. The plurality public interest considerations are set out in s58 (2A) and (2B) of the Enterprise Act 2002 and cover:

¶(a) accurate presentation of the news in newspapers; (b) free expression of opinion in newspapers; and

¶(c) to the extent reasonable and practicable, a sufficient plurality of views in newspapers, in each market for newspapers in the UK or a part of the UK.

¶4.7 Where there has been a reference to the CC, it will make recommendations as to any remedies it deems appropriate to meet competition or plurality concerns. The final decision on any action to take with respect to plurality issues rests with the Secretary of State. However, the Secretary of State may seek the advice of Ofcom on the CC's recommendations on the plurality aspects of the transfer. He can disregard the competition authorities' proposed solutions to competition problems, but only where the plurality issues justify this course of action: the Secretary of State will decide overall on the basis of a public interest test that will take account of both plurality and competition.

¶Developments since 2003: local media assessment

¶4.8 The interim Digital Britain report included an invitation to the Office of Fair Trading to conduct a review of the local and regional media merger regime. The conclusions of this review were published in the final Digital Britain report. The OFT broadly considered that the existing merger framework was sufficiently robust and flexible, but recommended that a number of small changes would be advantageous. This included amending OFT guidance to ensure that, where a local media merger raised prima facie competition issues, the OFT would ask Ofcom to provide a Local Media Assessment (LMA) covering relevant factors arising from their understanding of media markets. The OFT subsequently revised their Jurisdictional and Procedural Merger Guidance accordingly.

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¶4.9 Ofcom has to date conducted one Local Media Assessment, concerning the proposed acquisition by Kent Messenger Group (KMG) of seven newspaper titles owned by Northcliffe Media. Ofcom provided its Local Media Assessment to the OFT on 2 September 2011. Ofcom considered that a merger could provide the opportunity to rationalise costs, maintain quality and investment, and provide a sounder commercial base from which to address long-term structural change, for example by expanding the availability of online and other digital local services. It also said that these potential benefits needed to be weighed against any potential customer harm resulting from reduced competition identified in the OFT's overall assessment. C Despite this, on 18 October 2011, the OFT referred the proposed merger to the Competition Commission, and the CC cancelled its inquiry after KMG announced it was abandoning the proposed acquisition as a result of the referral and some of the titles concerned were closed. According to KMG "The costs and time required for a full Competition Commission review would be completely unreasonable for a business of our size and for a deal of this scale."⁵⁸⁵⁸ http://www.guardian.co.uk/media/greenslade/2011/oct/18/local-newspapers-mediabusiness parT D

¶STanDarDS

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¶The historical background

¶1.1 In order to understand the present position in relation to press regulation, it is necessary to examine what has happened in the past. This chapter of the Report examines the content and context of the three Royal Commissions into the British Press undertaken since the Second World War, the Younger Report into Privacy of 1972, and the two reports of Sir David Calcutt QC into privacy and the press published in 1990 and 1993. Taken together, these form the formal public policy response to concerns with the press, press standards and the behaviour of journalists and others acting on behalf of newspapers and their employees, in the post-war D period.

¶1.2 It can be argued that the findings of the three Royal Commissions as well as the reports of Sir David Calcutt not only help to elucidate a pattern of press behaviour that remains pertinent to the work of this Inquiry, but also set out a series of attempts to find a solution to problems that remain broadly unchanged and unaddressed. Indeed, it has been contended by some witnesses to the Inquiry that the six documents that form the backdrop to this chapter bear telling testament to a misplaced faith in the ability of the industry to develop and lead self-regulatory systems capable of offering appropriate real redress to those who have been wronged, and of constituting a sufficient solution to problems of unethical and unlawful behaviour in the newspaper industry. In this regard, the Media Standards Trust has said in its submission to the Inquiry:¹¹ p13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Media-Standards-Trust.pdf

"The conclusion… that self-regulation on its own, without any greater independence or enhanced powers, does not provide adequate protection for the public or for journalists - is based in large part on an historical analysis of the continued failure of the various voluntary self-regulatory bodies that have existed since the first Royal Commission on the Press published its report in 1949."

¶Some context

¶1.3 As has been emphasised in this Report on more than one occasion, the British press has a long held reputation for the vitality and quality of its journalism as well as the diversity of voices with which it speaks. Certainly, it has been with something approaching envy that overseas commentators examining the British press both historically and today have been impressed by both its freedoms and the breadth and scope of its journalism. In this regard, it is worth highlighting the very large number of occasions that the Inquiry has been told with real pride by commentators, journalists, proprietors and politicians about the achievements of the British press and the valuable role it plays in the public life of the nation.

¶1.4 For my part, I do not doubt that, at its best, British journalism is and has historically been world-beating: it has uncovered scandal, reported on significant events, and campaigned on issues of importance with both decency and integrity. Furthermore, it has been made very clear during the course of this Inquiry that journalism of the highest quality is not restricted only to a certain section of the press but is to be found across its many distinct and different parts: not only in the broadsheets but also in the mid-market titles and the tabloids along with the regional and local press, both in print and now also in their online editions.

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¶1.5 Before dealing with the analysis of historical responses to the culture and practices of the press, it is worth restating that the press does not exist in a vacuum. It is subject to other forces. Technological and societal changes have increased the pressures on what is and has historically been an intensely competitive market. The share which the newspaper industry holds of the wider communications market has been steadily eroded, first by radio and then the advent and growth of television. Television has moved from one initial offering by the BBC to the explosion of channels available through the introduction of satellite television services and, further, with the continuation of this trend through the rollout of digital television. The loss of market share has been further exacerbated by the internet and the increasing availability of mixed media services through that medium. Overall, these forces have had an important role in shaping the culture, practices and ethics of the press over decades.

¶1.6 It should not be thought that the culture and practices that have given rise to the establishment of this Inquiry are in any way new, even if much of the technology which underpins new developments is. Concerns as to the behaviour and practices of the press have been articulated by both private individuals and Governments throughout the twentieth century, and (in one form or another) very much earlier. Indeed, some of the practices and concerns that gave rise to the 1947 Royal Commission into the Press, and in particular those in relation to the breach of privacy of individuals, have been effectively repeated before this Inquiry. Thus, the historical review carried out in this chapter demonstrates a number of common themes; in particular, it reveals not merely consistent and similar complaints over the preceding decades, but also consistent and similar proposed solutions.

The royal Commission into the press 1947

¶2.1 Shortly after the election of the Labour Government in May 1945, the National Union of Journalists (NUJ) passed a resolution which called for the new administration to establish an independent Commission to examine, among other things, structures of ownership and control of British newspapers. The NUJ resolution reflected growing concern about the influence of a small group of newspaper publishers who had substantively increased their share of the national newspaper market in the inter-war period. The NUJ resolution also gave voice to other concerns and called for a Commission to investigate:²² Moore, M, The Origins of Modern Spin: Democratic government and the media in Britain, 1945-51, p106

"...with the object of furthering the free expression of opinion through the Press and the greatest practicable accuracy in the presentation of news, to inquire into the control, management and ownership of the newspaper and periodical Press and the news agencies, including the financial structure and the monopolistic tendencies in control, and to make recommendations thereon."

¶2.2 The resolution led to the tabling of a motion in the House of Commons that repeated its central concerns. Advanced by members of Parliament who had either worked as journalists or were still employed as such, the motion also made an explicit connection between the growing concentration in newspaper ownership by a small number of proprietors as well as the substantial increases in the profitability of some newspapers since the conclusion of hostilities, and a supposed decline in the quality of British journalism.³³ ibid, p4 The motion was passed by MPs on the 29 October 1946. It read:⁴⁴ Great Britain, Royal Commission on the Press 1947-1949: Report, p3

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"That, having regard to the increasing public concern at the growth of monopolistic tendencies in the control of the Press and with the object of furthering the free expression of opinion through the Press and the greatest practicable accuracy in the presentation of news this House considers that a Royal Commission should be appointed to inquire into the finance, control, management and ownership of the Press."

¶2.3 In part, the concerns articulated in the resolution of the NUJ and the Parliamentary motion reflected understandable public disquiet at a return to business as usual by the newspaper industry after the war years (which had entailed strict Government control of all content, print as well as the means of distribution). The reversion to a peacetime modus operandi also heralded the return, after the quiescence of the war years, of a number of sharper D journalistic practices increasingly unpalatable to the public at large. These were manifest to differing degrees in accusations of inaccuracy and political bias on the one hand and alarm at the intrusion of journalists into the private lives of individuals on the other.⁵⁵ O'Malley, T and C Soley, Regulating the Press, pp51-56

¶2.4 However, public indignation at such behaviour was not new; the culture and practices of some parts of the press had been noted as a matter of concern by the immediate pre-war Government-appointed Political and Economic Planning (PEP) group which, in 1938, had formulated the first significant proposal for formal self-regulation of the press.⁶⁶ Political and Economic Planning, Report on the British Press Among other things, the PEP group's final report argued for the establishment of a voluntary Press Tribunal led by an independent Chairman and supported by a panel of experts drawn from the newspaper industry. This, the report suggested, should consider and mediate complaints made by members of the public about the press. The outbreak of war drew an end to any further work to achieve this end.

¶2.5 The Commission was granted a broad remit by the Government of Clement Atlee and was charged with seeking answers to a number of questions that went further than the concerns that have been outlined above. The Government asked that the Commission investigate:⁷⁷ "whereas [w]e have deemed it expedient that a Commission should forthwith issue with the object of furthering the free expression of opinion through the Press and the greatest practicable accuracy in the presentation of news, to inquire into the control, management and ownership of the newspaper and periodical Press and the news agencies, including the financial structure and the monopolistic tendencies in control, and to make recommendations thereon", ibid, piiiShow full note,⁸⁸ ibid, pp4-5

"Whether the degree of concentration of ownership of newspapers, periodicals, and news agencies at present exists;
Whether there is a tendency towards further concentration;
Whether such concentration as exists is on balance disadvantageous to the free expression of opinion or the accurate presentation of news;
Whether any other factors in the control, management or ownership of the Press or of the news agencies, or any external influences operating on those concerned in control, management or ownership, militate against this freedom and accuracy; and

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How this freedom and accuracy may best be promoted."

¶2.6 When the Royal Commission reported in 1949, it made a number of damning findings. It found that there had been "a progressive decline in the calibre of editors and in the quality of British journalism" which, it argued, if not addressed would undermine not only the freedom of the press itself, but also the welfare of the country at large. The Commission recommended that a system of self-regulation should be established, built around a "General Council of the Press". The Commission was unambiguous in its consideration of statutory controls which, it argued, would unacceptably restrict the freedoms of the press. It said that it was necessary:⁹⁹ O'Malley, T and C Soley, Op cit, p55

"to safeguard the freedom of the press; to encourage the growth of a sense of public responsibility and public service amongst all engaged in the profession of journalism [...]; and to further the efficiency of the profession and the well being of those who practiced it."

¶2.7 The Royal Commission hoped that the proposed General Press Council would function both as a guarantor of the "freedom and prestige of the Press", by representing the interests of the newspaper industry through a single, unified voice as well as a brake on poor and unethical journalistic practices. In so doing the Royal Commission made a fundamental statement on the nature of the relationship between the state of the press and the health of the nation as a whole, suggesting a correlation between the ownership structures of the newspaper industry and the incidence of inaccurate reporting and poor journalism. Significantly too, the Royal Commission's report recognised that, as a consequence of technological and commercial changes, the ability of newspapers to disseminate "to the public a mass of information on subjects as complicated as they are important" had increased, but there had been no commensurate increase in journalism fitting or appropriate to such purpose.¹⁰¹⁰ ibid, p164

¶2.8 The Report of the Royal Commission made a number of recommendations, some of which added important detail to the central proposal of the formation of this 'General Council'. For instance, the Commission recommended that the Press Council be made up of 25 members, a proportion of whom (some 20%) would be appointed from outside the industry and would ensure that lay interests were adequately represented. The Commission's Report also set out what Sir William David Ross and his fellow commissioners regarded as the necessary and non-negotiable elements of an effective regulatory regime for the British press. These were: a code of conduct; powers to adjudicate and rule on complaints, including those received from third parties as much as from individuals directly affected, and powers to impose sanctions where appropriate. It was intended by the Commission that the Press Council should have sufficient powers to maintain press standards and where appropriate to impose sanctions for poor conduct:¹¹¹¹ Great Britain (1949) Op cit, p172

"It should have the right to consider any complaints which it may receive about the conduct of the Press or of any persons towards the Press, to deal with these complaints in whatever manner may seem to it practicable and appropriate, and to include in an annual report a statement of any action taken."

¶2.9 It is clear from the recommendations made by the Royal Commission that it intended that the Press Council should have a broad remit, encompassing a number of potentially problematic and conflicting functions; this would include being a champion of press freedom as well as a defender of the rights of members of the public who might have been mistreated by the press. In addition the Royal Commission proposed that the General Council of the Press should have appropriate powers to monitor and rule on the terms and conditions of the employment of journalists and other newspaper workers, whilst also promoting the interests of consumers and conducting research into the long-term social and economic impacts of the print industry. The Commission was clear; its proposals were not intended "to safeguard its own liberty" but to "save the press from itself."¹²¹² Great Britain (1949) Op cit, p178

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¶2.10 Although Parliament unconditionally accepted the recommendations of the Commission, the industry response to them was slow and much wrangling and negotiation followed. Indeed, it has been convincingly argued by some commentators that such progress was only made as a consequence of the real threat of statutory regulation.¹³¹³ Snoddy, R, The Good, the Bad, and the Unacceptable: The hard news about the British press, p84

¶2.11 That came about in this way. The initial industry response of the press to the Report of the Royal Commission found little favour with the then Government. That response was seen as concentrating too much power in the hands of already powerful newspaper proprietors, D and paying too little heed to many of the recommendations contained in the report. The NUJ also declared the newspaper industry's proposals to be unacceptable to the Union and its members.¹⁴¹⁴ O'Malley, T and C Soley, Op Cit, p56

¶2.12 To deal with what appeared to be a palpable lack of progress and refusal on the part of the newspaper industry to grapple with the fundamental criticisms and concerns at the heart of the Royal Commission's report, in November 1952 the Labour backbench MP, CJ Simmons, with the backing of a number of members of the Shadow Cabinet, introduced a Private Member's Bill. This Bill was intended to establish a Press Council in statute. The threat of statutory regulation quickly persuaded newspaper publishers to come to an agreement that was deemed satisfactory to the Conservative Government, which then took action to prevent a second reading of the Bill.¹⁵¹⁵ ibid, pp57-58

¶2.13 When it was eventually established in 1953, the General Council of the Press, as had been fashioned by the industry and endorsed by the Conservative Government, was substantially different from the proposals that had been recommended by the Royal Commission. In many respects, the changes which had been made to the structures and functions of the nascent Press Council were to the benefit of the industry and not to those who complained of having been the victims of press mistreatment. Significantly, proposals for lay representation on the Press Council, including the appointment of Chairman from outside the industry, had been dropped. Further, the recommendation that the Press Council be able to investigate and make findings on complaints brought by members of the public was changed so that, in most circumstances, only complaints by persons affected by stories would be accepted; third party complaints would be entertained on a discretionary basis and exceptionally. Other recommendations relating to the promotion of standards and the employment conditions of journalists and other newspaper employees were also omitted from the final proposals brought forward by the industry.¹⁶¹⁶ ibid, p59

¶2.14 The Media Standards Trust has noted in its submission to the Inquiry the 'prescience' of the final contribution made by CJ Simmons to the Parliamentary debates on the establishment the Press Council, in which he said:¹⁷¹⁷ O'Malley, T and C Soley, Op cit, p58

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"[To] give the voluntary Press Council a chance to prove its worth, efficiency and competence to do the job to which it has set its hand, I give warning here and now that if it fails some of us will again have to come forward with a measure similar to this Bill."

The royal Commission of 1962 and the Younger Committee into privacy

¶3.1 The General Council of the Press was neither the body nor the panacea that the Royal Commission had intended. From the outset it was the subject of criticism, particularly from those who thought themselves the victims of press mistreatment. It was seen as self-serving D and concerned more with defending the interests of journalists and newspaper editors than in addressing the many issues identified by the first Royal Commission on the press. In 1961 a second Royal Commission was established:

"...to examine the economic and financial factors affecting the production and sale of newspapers, magazines and other periodicals in the United Kingdom."

¶3.2 Lord Shawcross, a former Labour Attorney General and then President of the Board of Trade, later becoming a cross-bench peer, was appointed Chairman of the second Royal Commission. Lord Shawcross was a passionate defender of press freedoms and had spoken publicly on the subject on a number of occasions. He brought a formidable intellect to the task as well as a reputation for gravitas and forensic analysis achieved as Chief UK Counsel for the Prosecution in the post-war Nuremberg trials.

¶3.3 The establishment of a second Royal Commission on the press was prompted in part by the closure of a number of national and provincial newspapers which had led to a further, and to some, worrying concentration in the ownership of newspaper titles. Its primary purpose was to look at the costs of production, printing and distribution as well as at the nascent impact of television on readership and advertising revenues, and to consider whether these factors had affected the diversity of ownership and control. The terms of reference to the Commission explained it thus:¹⁸¹⁸ Great Britain, Royal Commission on the Press 1961-1962: Report, p8

"...to examine the economic and financial factors affecting the production and sale of newspapers, magazines and other periodicals in the United Kingdom."

¶3.4 The Commission was not primarily concerned with the performance of the press or with questions of ethical behaviour, and indeed its terms of reference made no express reference to either of these matters. But its very establishment reflected political and public concern at the steady build up of complaint, as well as public disapproval, at press behaviour. Some contemporary commentators sought to explain this further decline in standards through the prism of increased competition for circulation. Others called into question the effectiveness of the overall system of self-regulation through the General Council of the Press, decrying its inability to put an end to press intrusion into the private lives of individuals.¹⁹¹⁹ O'Malley, T and C Soley, Op cit, p60 It is a matter of some significance that Lord Shawcross commented on the failure to heed the lessons of the first Royal Commission:²⁰²⁰ Great Britain, Royal Commission on the Press 1961-1962: Report, p101

¶"[h]ad they been carried out much of our own inquiry might have been unnecessary".

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¶3.5 The Shawcross Commission published its findings in September 1962. The Commission levelled substantial criticism at the General Council of the Press for, in particular, its failure to implement many of the recommendations made by the first Royal Commission on the press. These specifically included those recommendations relating to the monitoring and enforcement of standards, the involvement of lay representatives on the Council and its failure to heed recommendations relating to the monitoring of levels of newspaper ownership.

¶3.6 The Shawcross Commission clearly identified those issues that it deemed had led to a decline in press standards, and it called for an improvement in the performance of the General Council of the Press. However, the solutions it proposed were little different from those articulated by the first Royal Commission in 1949. It recognised the desirability of a voluntary system of self-regulation for the press, but made clear that any such system of regulation would need to be built around an effective and credible body rather than the General Council of the Press as it was then constituted. It recommended that the industry should be given two years to bring forward, develop and implement appropriate plans but, should these not be forthcoming, recommended that the Government should introduce the legislation necessary to establish a Press Council in statute, with powers equivalent to those recommended originally by the first Royal Commission in 1949. Lord Shawcross said at the time:²¹²¹ ibid, p102

"If... the Press is not willing to invest the Council with the necessary authority and to contribute the necessary finance the case for a statutory body with definite powers and the right to levy the industry is a clear one".

¶3.7 Anxious at the potential threat of statutory legislation, the industry response to the recommendations of the second Royal Commission was rather swifter than had been the case following the first Royal Commission. The General Council of the Press was reformed as the Press Council. For the first time it included lay representation on its board. The newly formed Press Council also made amendments to its constitution to reflect the wider recommendations made by the Commission. Clauses that were no longer regarded as relevant to its role and remit were removed and, in particular, a new clause was introduced in relation to the consideration of complaints about the press.²²²² O'Malley, T and C Soley, Op cit, p64 This empowered the Press Council to deal with them "in whatever manner might seem practical and appropriate".²³²³ ibid, pp63-65 The reformed Press Council also took a more proactive approach to the consideration of some of the most significant challenges facing the press and published guidance on contempt of court, privacy and defamation.

¶3.8 These reforms, however, were not universally well-received. Questions were asked almost immediately about the ability of the Press Council to regulate the actions and conduct of newspapers. These had altered little over time, and the press continued to push at the boundaries of what was considered acceptable journalism. Coverage of the Profumo scandal and, in particular, the Sun's exclusive interview with Christine Keeler, as well as the vilification of the child-killer Mary Bell, by turns titivated, entranced and horrified the public. Further, allegations of payments for stories relating to the Profumo affair, as well as to witnesses in the case of the Moors Murders, undermined confidence in the efficacy of the Press Council as the regulatory body for the press.²⁴²⁴ ibid, pp64-67 Perhaps unsurprisingly, by the end of the decade there were calls for a further Royal Commission on the press as well as an inquiry into the workings of the Press Council which had struggled to be seen as anything more than "a champion of the press [rather] than as a watchdog for the public".²⁵²⁵ Robertson, G People Against the Press: An Inquiry into the Press Council, p13

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¶3.9 The introduction of a Private Members Bill on privacy forced the hand of the Wilson Government, and in 1970 a new Committee looking, once again, at the behaviour of the press was constituted.

¶The Younger Committee

¶3.10 The Committee on Privacy, chaired by Sir Kenneth Younger, was established to examine a number of issues relating to the personal privacy, including the responses of the Press Council to alleged breaches of privacy in the press. Sir Kenneth Younger was a barrister by training and former Labour Party politician who had served as a junior Home Office Minister D in the Government of Clement Atlee. After leaving Parliament in 1957, Sir Kenneth had campaigned for progressive political reform with regard to a number of social issues including the legalisation of homosexuality and reform of prison conditions.

¶3.11 Published in July 1972, the report of the Younger Committee on privacy was highly critical of the Press Council and its seeming inability to command the confidence of the British public. The Committee suggested a causal link between the level of lay representation on the Press Council and the overall credibility of that organisation in the public mind. The Commission duly recommended that the Press Council increase the representation of lay members; it also recommended that steps be taken to ensure the independence of lay appointments because, in its view, the process of appointment was both opaque and too readily open to influence from the industry.²⁶²⁶ Frost, C, Journalism Ethics and Regulation, p217 Of the recommendations made by the Younger Committee, perhaps the most significant related to the publication of Press Council adjudications by newspapers. The Younger Committee suggested that where an adverse adjudication had been issued by the Council, it should be given similar prominence to that given to the original article.²⁷²⁷ Great Britain, The Report of the Committee on Privacy, p13 The Younger Committee also recommended that the Council make efforts to codify its adjudications on privacy and build up a body of case law understood by the industry.²⁸²⁸ O'Malley, T and C Soley, Op cit, p69

¶3.12 It is perhaps indicative of the prevailing mood that the Committee did not unanimously agree the recommendations made in the final report. However, a minority of the commissioners who worked together with Sir Kenneth, did not believe the recommendations to be sufficiently far-reaching, and a minority report was published which recommended among other things a general law of privacy to provide individuals with proper protection from unjustified press intrusion.²⁹²⁹ Snoddy, R, Op cit, p88

¶3.13 The reforms of the Press Council, which were finally implemented in July 1973, did not encompass the most significant of the recommendations made in the Younger Report. In particular, recommendations on the prominence of adjudications and the codification of rulings had been dropped. Lay membership on the Press Council was increased by four to ten, which was exactly half the number of industry representatives. Begrudgingly accepting the Committee's recommendation, the Chairman of the Press Council, Lord Pearce, noted that the Younger Report had provided 'no evidence' to support the conclusions it made linking public confidence in the Press Council to the proportion of lay representatives but, nonetheless, further minor changes were made to increase the number of lay representatives serving on the Complaints Committee.³⁰³⁰ O'Malley, T and C Soley, Op cit, p69

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¶3.14 Following the publication of the Younger Report, public criticism of the Press Council, characterised by Lord Pearce as 'assaults on the principle of self-regulation,' became more commonplace.³¹³¹ ibid, p71 Certainly, the tensions between the regulator, the regulated and the public were made more acute by the political and social tensions between the Government, the trade unions and the industry more broadly, and did little to address the failings, both perceived and actual, of the Press Council. Indeed, the performance of the Press Council was regarded by the Government of the day as so inadequate that, within a year of publication of Sir Kenneth Younger's report, not only was a third Royal Commission on the Press established, but it was given an express remit to examine in detail "the responsibilities, constitution and functioning of the Press Council."³²³² Great Britain, Royal Commission on the Press: Final Report, p(i)

The royal Commission of 1974

¶4.1 The Third Royal Commission on the Press was established on 7 March 1974 under the Chairmanship of Professor Oliver (later Lord) MacGregor, then a leading academic in the field of socio-legal studies and medical sociology and, immediately before his appointment, a fellow of Wolfson College, Oxford. Much later, he was appointed first Chairman of the Press Complaints Commission.

¶4.2 The MacGregor Commission was constituted not only in the context of ongoing discussions on the recommendations of the Younger Report on privacy but also against a continuing backdrop of concern at the behaviour of journalists and the press more widely. Public and political frustration was also growing at the apparent inability of the Press Council to curb the worst excess of such behaviour or to provide sufficient redress to those who had been wronged by the press. The MacGregor Commission was granted a broad remit and was invited to:³³³³ ibid, pp(i-ii)

"...inquire into the factors affecting the maintenance of the independence, diversity and editorial standards of newspapers and periodicals and the public freedom of choice of newspapers and periodicals, nationally, regionally and locally."

¶4.3 When it reported in 1977, the McGregor Commission sought to explain the real difficulties it had faced in reaching its recommendations. The Commission expressed concern that there was no real public or political consensus on the role of press in British society. It recognised that the press should not be subject to state control but it refused to advocate a press that was subject only to the unregulated forces of the market and the pursuit of profit.³⁴³⁴ ibid, p11 Although undecided on the most suitable form of regulation for the press, the Commission was unequivocal in its criticism of the Press Council both as a regulator of press standards and as able to provide appropriate means of redress. It recommended wholesale changes to both the structure and functions of the Press Council.

¶4.4 The Commission's proposals for reform of the Press Council included a reiteration of the dormant recommendations of the first and second Royal Commissions as to the prominence and location of adjudications. Lord MacGregor's Commission, in line with the previous Royal Commissions and the Younger Commission, also proposed that the question of confidence in the Press Council should be addressed through an increase in the number of lay representatives and the appointment of a lay Chairman. It also recommended that the Press Council should seek to curb the worst excesses of the press through the development and implementation of a written code of conduct. The Commission's report noted:³⁵³⁵ ibid, p13

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"...it is unhappily certain that the Council has so far failed to persuade the knowledgeable public that it deals satisfactorily with complaints against newspapers".

¶4.5 The MacGregor Commission also made recommendations intended to effect a fundamental shift in the treatment and handling by the Press Council of complaints made by members of the public. It proposed that the Press Council should not only act as mediator and arbitrator of complaints but should also actively seek, where appropriate, to secure the swift publication of D adjudications, where necessary on the front page. The MacGregor Commission also entered new terrain, as its recommendations included:³⁶³⁶ ibid, pp235-236

"The creation of a Conciliator, drawn from the staff of the Council, to propose remedies between complainants and newspapers: • The extension of the Council's doctrine of right of reply, and to uphold a newspaper's making space available to those it has criticised inaccurately (although the Commission rejected the introduction of a legal right of reply on the principle that the press should not be subject to different laws than ordinary citizens); • The power to investigate the conduct of the press without waiting for a formal complaint; to introduce the practice of undertaking wider reviews of publications and journalists involved in disputes; • The amendment of the Council's existing position on accuracy and bias, so that inaccuracy should be prima facie evidence for upholding a complaint; • The Chairman's role to be extended to chairmanship of the Appointments Commission; and • That the Council should accept recommendations for lay appointments from any source."

¶4.6 In line with the approach of the Second Royal Commission, the final report of the MacGregor Commission suggested that if the response of the industry and Press Council was insufficient to address ongoing concerns as to press conduct and restore confidence in the Press Council, then a statutory solution might need to be sought.³⁷³⁷ Snoddy, R, Op cit, p91 That said, Professor MacGregor remained hopeful that such measures would not be necessary. The conclusion to its report set out its aspiration and belief that:³⁸³⁸ ibid, p215

"...these recommendations will be accepted and acted on by the Press Council, and that it will fulfil the hopes that were held for it in 1949."

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¶4.7 In a yet further parallel to the Younger Review, the MacGregor Commission published a minority report, its adherents taking the line that more was needed to modify the culture, practices and ethics of the press.³⁹³⁹ Great Britain (1977), Op cit, p241

¶4.8 Much as the publication of the MacGregor Report in 1977 had mirrored the publication of the Shawcross report in 1962, there were many similarities between the reactions of the Press Council and the industry to the two sets of recommendations. The Press Council rejected the most significant recommendations of the MacGregor Commission, arguing that they amounted to an unnecessary restraint on the press and muzzled freedom of expression, despite widespread and very public calls for meaningful reform. In all, five out of twelve of the MacGregor Commission's recommendations for reform of the Press Council were explicitly rejected, including the recommendation for a written Code of Conduct, and a number of others were de facto ignored.⁴⁰⁴⁰ ibid, pp77-78 Furthermore, where the call for reform was heeded and changes implemented, that implementation was partial and incomplete. As the Media Standards Trust has fairly pointed out, this repeated the:⁴¹⁴¹ ibid, p78: "[The Council] rejected 'the Commission's suggestion that it should seek undertakings that newspapers would publish adjudications upholding complaints against them on their front page'. This was, of course, a recommendation, not a 'suggestion.'" D

"...previous outcomes of 1953, 1963 and 1973 (when the recommendations of the first two Royal Commissions and the Younger Report were implemented)."

¶4.9 Of the recommendations made by the MacGregor Commission in relation to the Press Council, only those relating to lay representation, the appointment of a Conciliator and to the seeking of nominations 'from any source' were adopted in full.

¶4.10 Yet although the reaction of the industry was predictably obstructive, the reaction of the public was different. Whereas the newspaper industry had criticised the recommendations made by Professor MacGregor because of the restrictions they believed the proposals would, if implemented, have placed not only on freedom of speech but also on the ability of journalists to hold the rich and powerful to account, public criticism of the report focused on the perceived weakness of its proposals, particularly in relation to the Press Council. In a curious twist of fate, contemporary commentators also suggested that there were unintended consequences to the publication of the MacGregor report, namely that the extent of the criticism of the Council in the report weakened it still further and "did little to improve the long-term credibility of that body."⁴²⁴² O'Malley, T and C Soley, Op cit, p77

The first report of Sir David Calcutt QC

¶5.1 It is clear that neither the MacGregor Commission nor the limited and begrudging response of the industry to its recommendations did much to stem the increasingly growing sense that self-regulation of the press through the offices of the Press Council was not an effective means of limiting harmful press behaviour. Rather, they fostered a polarisation of the debate on the role of the press in British society and the most effective means of regulating what many believed to be the most harmful aspects of press behaviour. Indeed, the period between the publication of the report of the third Royal Commission and the formation of the Press Complaints Committee in 1990 (following the publication of the first of the reviews of the press by Sir David Calcutt) witnessed some of the most egregious examples of press misconduct. These included allegations of cheque book journalism in relation to the Yorkshire Ripper, Peter Sutcliffe, defamatory allegations made in The Sun about the singer, Elton John (which led to the award of record damages for libel in 1987), the coverage of the television presenter Russell Harty's illness and subsequent death in 1988, and the coverage of the alleged behaviour of Liverpool football fans during the Hillsborough disaster in 1989. Some of these examples of breaches of privacy and defamatory reporting became stories in their own right. The growing list of high-profile incidents involving harmful press behaviour tested public and Parliamentary support for the Press Council and led to a 'crescendo' of criticism.⁴³⁴³ Bingham, A, 'Drinking in the Last Chance Saloon': The British press and the crisis of self-regulation, 1989-95', p80

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¶5.2 The corollary to this was the continued erosion of public support for voluntary self-regulation. It should not be doubted that contemporaneous arguments about journalistic freedoms and the most effective means of regulating the British press were amplified through the wider travails and industrial disputes that afflicted the industry during this period. These paralleled a growing ideological divide in British politics. Back in 1974, the Labour Party had published D a report entitled The People and the Media which set out its thinking on the British media and communications markets. It proposed that a joint regulatory code should be developed for both broadcasting and the press, and that public confidence in the regulator should be fostered through greater transparency, regular public review of that body and a legally enforceable right of reply.⁴⁴⁴⁴ Labour Party, The People and the Media The report also considered the state of the press market and, perhaps unsurprisingly for a document produced by a political party which was not always favourably characterised in press reporting, bemoaned a lack of accountability and bias in the press. More significantly, The People and the Media was also strongly critical of the existing system of self-regulation through the Press Council; whilst the Governments of Harold Wilson and James Callaghan did little to change the system of self-regulation for the press, the report marked an fundamental shift in political support for the Press Council, which had previously benefited from the tacit support of both the Labour and the Conservative Parties.

¶5.3 The Labour Party was certainly not alone in its criticism of the Press Council. The Campaign for Press Freedom (which would later be re-constituted as the Campaign for Press and Broadcasting Freedom (CPF)) also advocated a complete overhaul of regulation of the press. Perhaps unsurprisingly for an organisation that had its roots in the wider Labour movement, the CPF pointed to what it regarded as unnecessary and destructive hostility directed at the trade unions by newspaper proprietors. The CPF also sought to lay the blame for the lack of real and meaningful reform at the door of the Press Council and the system of self-regulation itself.

¶5.4 So concerned was the CPF at the perceived injustices of the existing system that it established its own Inquiry into the Press Council and matters relating to it. When it was finally published in 1983, the CPF report (known as the Robertson Report on the Press Council after its Chairman Geoffrey Robertson). The Robertson Report was unsurprisingly critical of the performance of the Press Council, but recommended nevertheless that the organisation be granted one final opportunity to reform itself and demonstrate its efficacy as a regulator.

¶5.5 The conclusions of the report were unambiguous about what such reforms should entail. It recommended substantive changes to the Press Council and indeed to the existing law. Recommendations for reform of the Press Council included the further and oft repeated call for the development of a published code of conduct, auditing powers to ensure the maintenance of high standards, as well as powers, backed by contract, to direct prominent publication of corrections.⁴⁵⁴⁵ O'Malley, T and C Soley, Op Cit, p82 The Robertson Report also recommended that the Press Council be given responsibility for the training and professional development of journalists. However, this report also went much further in its recommendations than just proposals for the reform of the Press Council. It also recommended substantive legislative change. Proposals put forward by the CPF included legislation to establish a statutory press ombudsman, to provide a defence in law for investigative journalism, a Freedom of Information Act and changes to the laws on libel and contempt.⁴⁶⁴⁶ the 1947-1949 Royal Commission explored but dismissed this option

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¶5.6 Reference has already been made to examples of press misconduct in the 1980s, but it would be incorrect to suggest that the Press Council was always silent in these circumstances. Indeed, under the leadership of its final Chairman Sir Louis Blom-Cooper QC, the Press Council made significant efforts better to represent ordinary people and the victims of press mistreatment.⁴⁷⁴⁷ p6, para 11, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Third-Submission-by-Sir-Louis-Blom- Cooper-QC.pdf However, there is little evidence to suggest that such rulings were respected or observed by the industry. Indeed, in material submitted by Sir Louis to the Inquiry, he has made clear his belief that the Press Council ultimately failed because its rulings were routinely, though not always, traduced and undermined in the pages of newspapers, thereby only serving to undermine public confidence in that body.⁴⁸⁴⁸ pp6-8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/First-Submission-by-Sir-Louis-Blom-Cooper- QC.pdf D

¶5.7 The perceived inability of the Press Council to take credible and effective action in these cases of press mistreatment further damaged its reputation. Increasingly, it was regarded as ineffective both as a regulator of press conduct and as a means of redress for those who had suffered harm. Consequent opprobrium at the Press Council was not restricted to those who were the victims of press misconduct, but also extended to policy makers and to some of those involved in the industry. Already in 1980, the NUJ had withdrawn its membership from the Press Council on the grounds that it was not only incapable of internal reform but also was not able effectively to improve the behaviour of the press.

¶5.8 Parliamentary concern at the behaviour of some parts of the press was such that in 1989 two Private Members' Bills were put before Parliament. These were intended to address the intrusive practices conducted by some journalists and the lack of redress available to those who had been the victims of them. The first of the two Bills was laid before the House of Commons by a Conservative MP, John Browne. His Bill proposed the introduction of a privacy tort, envisaged as a means of helping to protect individuals from unwarranted intrusion by the press. The second such Bill was introduced by Tony Worthington, a Labour MP. This proposed the creation of a statutory Press Commission Appeal Tribunal with legally enforceable sanctions. Introducing his Bill to Parliament, Mr Worthington expressed the hope that it would improve access to redress for those who had been the victims of press mistreatment and speed up the process of dealing with complaints.

¶5.9 These Private Members' Bills were not the only attempts by Parliamentarians to tackle perceived press wrong-doing and the seeming inability of the Press Council to police press excesses effectively, although they were the last before the eventual appointment of Sir David Calcutt in 1989. For example:⁴⁹⁴⁹ O'Malley, T and C Soley, Op Cit, pp79-82

In June 1981 the Labour MP, Frank Allaun, presented a Bill 'to give members of the public the right to reply to allegations made against them in the press, or on radio or television'. In December 1982, Allaun introduced a second right of reply Bill to the House of Commons.

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In January 1982, the Conservative MP, Teddy Taylor, asked the Attorney General to review the remedies available 'to individuals, groups and organisations in the event of newspapers or the broadcasting media publicising inaccurate or misleading reports, and legal remedies available to newspapers and broadcasters in the event of industrial action looking to influence their content.'
In June 1984, Alfred Dubs MP (Labour) pressed unsuccessfully for a Bill to make newspapers declare payments to non-regular contributors. The Labour MP Austin Mitchell also introduced a Bill requiring a right of reply.
In 1987 a number of yet further attempts were made to introduce legislation to curb the worst excesses of press misbehaviour. These included the movement of a debate in the House of Lords by the Labour Peer, Lord Longford, on 'Tabloid press: moral standards',

¶D the introduction of an Unfair Reporting and Right of Reply Bill by the Labour MP,

¶Ann Clywd, and the introduction of a Right of Privacy Bill by the Conservative MP, Bill Cash.

¶5.10 The Government responded to this continual build-up of pressure for both the reform of the Press Council and the introduction of effective curbs on the worst excesses of press practice by appointing a Departmental Committee, chaired by Sir David Calcutt QC, to investigate the matter. Sir David was asked:⁵⁰⁵⁰ http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Exhibit-SA-–-D2.pdf

"...to consider what measures (whether legislative or otherwise) are needed to give further protection to individual privacy from the activities of the press and improve recourse against the press for the individual citizen."

¶5.11 Sir David published his report on Privacy and Related Matters in June 1990. It is clear from the content of the report that the members of the Committee considered its remit to go beyond a limited discussion of privacy and encompass the existing system of press regulation.⁵¹⁵¹ Home Office (1990), Report into Privacy and Other Matters, passim, especially. p5. The final report was highly critical of the Press Council and set out in clear terms the failings of that organisation. These included: its ineffectiveness as an adjudicator; the lack of confidence in its independence from the newspaper industry; its tendency to reject large numbers of complaints; the lack of clarity in its selection and categorisation of complaints; the time taken to resolve contested cases; and the lack of effective sanctions in instances of proven breach.⁵²⁵² ibid, pp63-64, paras 14.28-14.34

¶5.12 However, contrary to the expectations of a number of contemporary commentators, Sir David Calcutt's first report did not advocate the introduction of statutory controls for the press. Rather, it recommended that the Press Council should be abolished and replaced with a new self-regulatory organisation; the Press Complaints Commission (PCC). The report argued that the press be given:⁵³⁵³ ibid, p65, para 14.38

"...one final chance to prove that voluntary self-regulation can be made to work. However, we do not consider that the Press Council, even if reformed as proposed in its internal review, should be kept as part of the system. We therefore recommend that the Press Council should be disbanded and replaced by a new body, specifically charged with adjudicating on complaints of press malpractice. This body must be seen to be authoritative, independent and impartial. It must also have jurisdiction over the press as a whole, must be adequately funded and must provide a means of seeking to prevent publication of intrusive material. We consider it particularly important to emphasise the break from the past. The new body should, therefore, be called the Press Complaints Commission."

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¶5.13 The report recommended that this new body should deal with the numerous and substantial concerns that had been raised around the behaviour of some parts of the press. In contrast to the three Royal Commissions, the Calcutt Committee did not make a large number of recommendations for specific reforms. Rather, it set out a framework of measures that the Committee regarded as the necessary elements of an effective self-regulatory regime. The new PCC would have 18 months to demonstrate "that non-statutory self-regulation can be made to work effectively" by implementing appropriate reforms.⁵⁴⁵⁴ Bingham, A, Op cit, p84 In this report, Sir David recognised that such change would pose a significant challenge for the press but was adamant that if the challenge should not be met, namely 'a less than overwhelming rate of compliance with the Commission's adjudications...[or]...large-scale and deliberate flouting of the code of practice by the press or a total collapse in standards,⁵⁵⁵⁵ Home Office (1990), Op cit, p74 then "a statutory system for handling complaints should be introduced."⁵⁶⁵⁶ Home Office, Op cit, p74 D

¶5.14 Sir David's report made clear that the primary function of the PCC should be to provide effective redress for complaints made by members of the public against the press, including the ability to consider allegations of unfair treatment and unwarranted infringements of privacy. In addition, the Commission was to "publish, monitor and implement" a comprehensive code of practice for the guidance of both the press and the public, as well as to operate a 24 hour hotline for complainants.

¶5.15 Sir David also made clear that the adjudication of complaints should be a clear and fast process and that, where a newspaper was demonstrated to be in breach of the code, an apology should be given to the complainant. Sir David also recommended that the PCC should be able to advise on the form and placing of replies or corrections. It is noteworthy that Sir David's report made no mention of sanctions and instead placed emphasis on the preparedness of the press to adhere to the adjudications of the PCC.

¶5.16 In addition, Sir David's report made a small number of specific recommendations about the structure and function of the PCC, intended to address concerns expressed by the three Royal Commissions as to the independence of the organisation. The report recommended that the PCC should have an independent Chairman supported by a Commission made up of no more the twelve Commissioners. These would be appointed by a separate independent appointments commission which would select and appoint on the basis of merit alone.

¶5.17 As had been the case after the second Royal Commission (but not other reviews less favourable to the press), the response of the industry was swift. The Press Council was duly disbanded, and in the spring of 1990 the five publishing associations in the UK (the Newspaper Publishers Association, the Newspaper Society, the Periodical Publishers Association, Scottish Newspapers Publishers Association and the Scottish Daily Newspaper Society) worked together to establish the Press Standards Board of Finance (PressBoF) for the specific purpose of funding the PCC. The PCC was itself incorporated on 1 January 1991 and, in a nod to the history of the self-regulation of the press as well as in recognition of his very real qualifications for the post, Lord McGregor was appointed as its first Chairman.⁵⁷⁵⁷ Bingham, A, Op cit, p84 However, the full Commission was appointed directly by Lord McGregor, in direct contravention of the Calcutt Report's specific recommendation that there should be a fully independent appointments process.⁵⁸⁵⁸ Shannon, R, A Press Free and Responsible, p74.

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The second report of Sir David Calcutt QC

¶6.1 Although the PCC had been established speedily, standards of press behaviour remained a concern to politicians and members of the public alike because no immediate improvement in press behaviour was discerned. Indeed it has been suggested that despite the speed and promise of its establishment, the PCC quickly followed the modus operandi demonstrated by the Press Council in its responses to the Royal Commissions and Sir Kenneth Younger's report on privacy in 1972.⁵⁹⁵⁹ pp24-24, and p28, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Media- Standards-Trust.pdf Many of the recommendations made by Sir David Calcutt were either quietly shelved or ignored by the PCC. Others were modified or implemented in a D manner that benefitted the industry. For instance, the Code of Conduct was promulgated by the industry rather than the PCC itself and, as indicated above, the appointments process was not independent.

¶6.2 The Commission also struggled to impose its authority on the industry; it has been argued that, in failing to commit to dealing with complaints from third parties, or indeed establish any investigatory arm, the regulatory function and capacity of the newly formed Commission was 'gravely weakened' from the outset.⁶⁰⁶⁰ Bingham, A, Op cit, pp84-85 In 1992 the Labour MP, Clive Soley, introduced a Private Member's Bill on Freedom and Responsibility of the Press. The Bill proposed the creation of a statutory Independent Press Authority, with powers to enforce its rulings through the courts. Clive (now Lord) Soley has suggested that his Private Member's Bill was intended to complement thinking around Sir David's forthcoming follow-up review.⁶¹⁶¹ pp2-6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Submission-by-Lord-Soley-of- Hammersmith.pdf

¶6.3 Following the publication in The Sun of the detail of intimate conversations between the Princess of Wales and James Gilbey, and the Prince of Wales and the Duchess of Cornwall (as she now is), the Secretary of State for National Heritage, David Mellor QC MP, gave a speech in July 1992 in which he reflected widespread public anger at the actions of The Sun. He described the press as drinking in the "last chance saloon". Mr Mellor later complained that his stance on the need for reform of the press led to him being driven from office by a series of salacious stories about his private life although he acknowledges that the timing was coincidental.⁶²⁶² pp30-36, lines 1-21, David Mellor QC MP, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/ Transcript-of-Afternoon-Hearing-26-June-2012.pdf Perhaps with greater ambiguity, he has also suggested that some of that coverage was legitimate and a matter of public interest.

¶6.4 In July 1992, Sir David Calcutt was asked by the Secretary of State for National Heritage to conduct a second review, the report from which was published in January 1993. This was just before Mr Mellor had left office in the circumstances explained above. David Mellor's explanation to the Inquiry was that 18 months had elapsed since the press had been described by him as drinking in the "last chance saloon" in December 1989, and the matter needed to be re-assessed.⁶³⁶³ P29, lines 5-17, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of-Afternoon-Hearing- 26-June-2012.pdf There, Sir David analysed the record of self-regulation by the press since the formation of the PCC in January 1991. Sir David's assessment was forthright. He contended that self-regulation by the PCC had failed and called for the introduction of a statutory Press Complaints Tribunal. He summarised his conclusions as follows:⁶⁴⁶⁴ David Calcutt QC, Review of Press Self-regulation, pxi, §5

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"The Press Complaints Commission is not, in my view, an effective regulator of the press. It has not been set up in a way, and is not operating a code of practice, which enables it to command not only press but also public confidence. It does not, in my view, hold the balance fairly between the press and the individual. It is not the truly independent body which it should be. As constituted it is, in essence, a body set up by the industry, financed by the industry, dominated by the industry, and operating a code of practice devised by the industry and which is over-favourable to the industry."

¶6.5 Sir David's second report made clear his view that the press was neither capable nor willing to initiate reforms that might constitute a credible alternative to statutory regulation. He therefore recommended that the proposals set out in his first report for a statutory "Press Complaints Tribunal" be enacted forthwith:⁶⁵⁶⁵ ibid, pxi §7 D

"It has been argued that two years is too short a time in which to judge the Press Complaints Commission. But the way forward was clearly spelt out in the Privacy Committee's Report. In particular, the Committee stressed the need for the Commission to be seen as an independent body which would command the confidence of the public. Both the Committee, and subsequently the Government, gave a clear indication that this was the last chance for the industry to put its own house in order. It has to be assumed that the industry, in setting up the present Press Complaints Commission, has gone as far as it was prepared to go. But it has not gone far enough."

¶6.6 If the conclusions reached in Sir David Calcutt's second report were damning of the PCC, the recommendations for change were equally alarming for the supporters of self-regulation. The final report contained a detailed set of proposals for the wide-ranging powers that should be granted to that body. These included powers to establish and maintain a code of practice, prevent the publication of material in breach of the code, handle complaints in relation to alleged breaches of the code (including from third parties), investigate and adjudicate on breaches without a complaint, require the publication of adjudications, apologies and corrections, and, where appropriate, to hold full hearings.⁶⁶⁶⁶ ibid, pp45-50

¶6.7 The PCC and the industry rejected the analysis of Sir David. They argued that he had failed to pay sufficient attention to the relevant facts. The PCC said that the criticism of it was excessive.⁶⁷⁶⁷ p36, para 56, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Stephen- Abell.pdf Indeed, Sir David's proposals were seen as a step too far by even the most adamantine critics of the press.⁶⁸⁶⁸ Shannon, R, Op cit, p119 However, the PCC did accept that some reform was required and under the leadership of its second Chairman, Lord Wakeham, changes were made to aspects of policy and procedure, largely to improve and expedite the complaints handling procedures.⁶⁹⁶⁹ pp4-8, lines 18-21, Lord Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Afternoon-Hearing-22-May-20121.pdf, pp23-24, lines 25-12, Lord Wakeham, http://www.levesoninquiry.org.uk/wp- content/uploads/2012/05/Transcript-of-Morning-Hearing-15-May-2012.pdf

¶6.8 Specifically, amendments were made to the Editors' Code of Practice. These included requirements to restrict the use of eavesdropping and phone bugging techniques.⁷⁰⁷⁰ http://www.pcc.org.uk/ Other changes included new guidance on how journalists should identify themselves when seeking stories. In addition, the board of the PCC was reconstituted to include a majority of lay members (nine, including the Chair, alongside seven serving editors). Similar changes were also made to the independent Appointments Committee.

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¶6.9 In further changes, the industry agreed that the PCC should be granted powers to ratify, if so advised, the changes to the Editors' Code of Practice recommended by the Editors' Code of Practice Committee. Funding to the Commission was also increased substantially. This enabled the development and introduction of a hotline for members of the public specifically to deal with incidents of harassment by members of the press, as had been recommended in Sir David's first report.

¶6.10 The weakness of the press response to the second Calcutt report, as part of an overall narrative, was demonstrated by an example provided by Lord Brooke, the Secretary of State for National Heritage between July 1992 and September 1994. He recalled that in 1993 the D Sunday Mirror published photographs of the Princess of Wales exercising in a private gym.⁷¹⁷¹ p26, lines 5-8, Lord Brooke, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Morning- Hearing-24-May-2012.pdf Lord McGregor, then Chairman of the PCC, issued a public rebuke of the Sunday Mirror; but instead of showing contrition the paper's response was to leave the system of self-regulation through the PCC.⁷²⁷² p26, lines 6-13, ibid Lord Brooke suggested that this incident was instructive at many levels, demonstrating not only the weaknesses existing within the system of regulation, but also the refusal of the press to begin to countenance change until compelled to do so as a consequence of public indignation at its behaviour.⁷³⁷³ p26, lines 17-18, ibid Lord Brooke described the matter thus:⁷⁴⁷⁴ p26, lines 5-21, ibid

"In the same way, another instance which I would quote from my own time, the episode of the Mirror in the first week of November 1993, when the photographs were taken of Princess Diana working out in a gymnasium, had a very powerful effect on the behaviour of the press immediately, because they had been resisting anything that in any way related to – either to Calcutt or to ourselves and indeed others, and then suddenly changed their minds when they realised that an episode as absurd as the Mirror episode, where the chairman of the Press Complaints Commission rebuked the Mirror – the Sunday Mirror, in fact – rebuked the Sunday Mirror for their behaviour, first led the Sunday Mirror to walk out of the Press Complaints Commission, and then to come back, and it was clear that some of the things that were being said to them about the degree of control that they had were actually being proved by reality."

¶6.11 The Government did not immediately respond to Sir David's second report. Rather, it waited until 1995, when the Secretary of State for National Heritage, Virginia Bottomley MP, rejected his recommendation for statutory regulation and instead supported the package of reforms that had been proposed by Lord Wakeham. The Inquiry has heard from witnesses who have sought to explain the nature of the Government's response. Sir John Major has told the Inquiry that, although a matter of concern to his Government, the conduct of the press could not be regarded as a priority, nor, he noted, was there any agreement within the Government on the most desirable way forward.⁷⁵⁷⁵ pp68-69, lines 13-5, Sir John Major, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Morning-Hearing-12-June-2012.pdf He recounted that his Government had to contend with other more pressing and immediate demands, including the UK's exit from the European Exchange Rate Mechanism on Wednesday 16 September 1992.⁷⁶⁷⁶ pp86-88, lines 12-25, ibid Sir John also suggested that the strength of Parliamentary opinion in relation to freedom of the press, particularly in the context of the Government's diminishing Parliamentary majority, ruled out any more decisive action in this area.⁷⁷⁷⁷ p73, lines 1-12, ibid

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¶6.12 Sir John's recollection of events has found a complementary echo in the evidence of Lord Brooke. He told the Inquiry that there was little appetite in Cabinet for the statutory solution proposed by Sir David in his second report.⁷⁸⁷⁸ pp4-8, paras xiv-xxvi, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Lord- Brooke.pdf Lord Brooke also explained that a number of legislative proposals, through which press intrusion might be addressed,⁷⁹⁷⁹ p15, lines 4-9, Lord Brooke, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Morning- Hearing-24-May-2012.pdf had been put forward by different Government departments. These included both a privacy tort and proposals to make some forms of intrusion a criminal offence. Lord Brooke noted that although there was some agreement in Cabinet on bringing forward legislation to introduce criminal offences, there was less accord in relation to the introduction of a tort of privacy.⁸⁰⁸⁰ pp4-8, paras xiv-xxvi, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Lord- Brooke.pdf

¶6.13 Stephen Dorrell, the Secretary of State for National Heritage from July 1994 to July 1995, was responsible for the formulation but not the publication of the response to the second Calcutt report. He has helped complete this picture. He said that such were the disagreements in D Cabinet around both the likelihood of the Government enacting legislation and the desirability of regulating the press, that the Government had "argued itself to a standstill".⁸¹⁸¹ p22, lines 12-16, Stephen Dorrell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Morning-Hearing-23-May-2012.pdf He also noted that the reforms to the PCC proposed and then implemented by Lord Wakeham increasingly appeared to meet the needs set out by Sir David Calcutt without the requirement for time-consuming and controversial legislation.⁸²⁸² pp19-20, line 19-5, ibid

¶6.14 Nonetheless, many have suggested that Lord Wakeham's appointment and tenure was very much in the interest of the press. Lord Smith summarised industry thinking behind his appointment in this way:⁸³⁸³ p19, lines 19-25, Lord Wakeham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Morning-Hearing-15-May-2012.pdf

"I think the newspaper industry did not want statutory control and that they accepted they needed someone to be the chairman with a bit of clout, who could stop statutory control by getting the standards up to an acceptable level, and this was my view of what I thought they probably wanted."

¶Sir John Major explained why Lord Wakeham's appointment might well have been valued by the industry itself:⁸⁴⁸⁴ p76, lines 15-21, Sir John Major http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Morning-Hearing-12-June-2012.pdf

"I mean, those who were at all queasy about it would then say, "Look, here is one of our own, a very respected former Cabinet Minister who is actually chairing the PCC. Therefore, why don't we wait and see how well he gets on? Why rush ahead with legislation?" So his appointment did have a material effect upon views in the Parliamentary party."

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¶6.15 However, Lord Wakeham was not appointed simply for his political skills. In perhaps the most important respect, he shared the values which were most cherished to the industry which the PCC was regulating. Lord Wakeham explained that he was a strong supporter of both press freedom and self-regulation:⁸⁵⁸⁵ p15, lines 17-22, Lord Wakeham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Morning-Hearing-15-May-2012.pdf

"I don't think you could be a chairman of a body that was running a system of self-regulation unless you believed in self-regulation. I think that would be a bit difficult. And I can't imagine you being a very good chairman of a Press Council if you didn't believe in press freedom. I would have thought they were pretty self-evidently things that were required for the job."

¶6.16 Whilst it is clear that the PCC did introduce reform during the chairmanship of Lord Wakeham, including the appointment of a Privacy Commissioner tasked with the oversight of each and every complaint to do with privacy, these changes did not amount to the creation of the D organisation envisaged by Sir David Calcutt in his first report, but rather a PCC that met the minimum requirements of a Government increasingly disinclined to effect major reforms of the system of press regulation and fearful of the political ramifications of any such change.

¶6.17 The PCC won support in some quarters, including in Government, for the breadth of its proposed reforms and their speed of implementation. But the frank evidence of Sir John Major is pertinent on this issue:⁸⁶⁸⁶ p79, lines 2-13, Sir John Major, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Morning-Hearing-12-June-2012.pdf

"In retrospect, yes. I mean, there were some things done. It has to be said on behalf of the PCC that it did make some changes. They were relatively trivial changes, but they were changes. And they also, if I remember correctly, appointed a privacy commissioner from among their numbers, a Professor Pinker, at the time. So there were things that they had done, and the hope that Stephen Dorrell is expressing there is that John Wakeham would be able to persuade the media, the press, to go a good deal further than they already had done. It was, as you say, aspirational."

The death of Diana, princess of Wales

¶7.1 The death of Diana, Princess of Wales in 1997 was a wake-up call for the press. Although it did not generate a specific inquiry into press ethics, it did reignite a public demand for improvements in press behaviour.

¶7.2 Considered as a whole, the reforms introduced in response to the public outcry were the most comprehensive ever introduced by the PCC. It should not be doubted that the reforms, which concerned amendments to clauses 4 and 6 of the Editors' Code of Practice, did have an impact on the behaviour and actions of journalists, press photographers and paparazzi.

¶7.3 Nonetheless, it is apparent from the evidence that these changes were, as so many before, hard won from the industry and not freely given. Lord Smith provided a detailed description of the protracted negotiations between his Department and the industry through the offices of the PCC, in which despite the tragic background, the quite extraordinary levels of public concern, and the willingness of the PCC to act in the first instance as regulator and then mediator, the final outcome was "relatively modest".⁸⁷⁸⁷ p35, lines 8-11, Lord Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Afternoon-Hearing-22-May-20121.pdf

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¶7.4 Lord Smith told the Inquiry that it was Government policy to seek to strengthen the system of self regulation and, in particular, to bring about changes in relation to sanctions, the definition of the public interest, and the issue of PCC pro-activity.⁸⁸⁸⁸ p28, lines 16-24, ibid. Lord Smith made clear that he thought that tackling these three issues would effect far-reaching and lasting change in the attitudes of the industry such that the press "should not slip back into old ways when the events of the past week have receded from recent memory".⁸⁹⁸⁹ p24, lines 6-14, ibid

¶7.5 However, it is quite clear from the evidence both of Lord Smith and Lord Wakeham that the industry was unwilling to make concession in these respects. Rather the changes that were finally adopted were confined to those very few areas outlined above most closely associated with the direct circumstances surrounding the death of Princess Diana. Lord Smith testified that the industry demonstrated a disinclination to agree to any changes and did so only under D duress after considerable public and political pressure was brought to bear. In his evidence Lord Smith recalled a meeting with Lord Wakeham in which the latter said:⁹⁰⁹⁰ p19, lines 11-13, ibid

"If the government can keep up some external pressure on me, pushing me all the time to go a bit further, then that will be very helpful, he said, in enabling me to make better progress with the editors and proprietors."

¶7.6 Even in the evidence of Lord Wakeham it is clear that his ability to broker a solution was severely circumscribed by the unwillingness of editors and proprietors to concede ground:⁹¹⁹¹ p32, lines 3–8, ibid

"bear in mind the changes in the code were not a matter for me; they were a matter for the editors under the arrangements, and I therefore had to move carefully to make sure the editors went along with what I wanted."

¶7.7 Lord Smith recognised that one of the lessons from history was that the window of opportunity for reform was short. He said that over a period of months the attitude of the PCC shifted from operating as a regulator to championing the interests of the press. This was a metamorphosis which it may be argued was as inevitable and it was entirely understandable, as other 'real world' concerns impacted, in particular in relation to the possible ramifications for the press of the incorporation of the European Convention on Human Rights into UK domestic law.⁹²⁹² p21, lines 9-16, Lord Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Afternoon-Hearing-22-May-20121.pdf

¶7.8 Further, the reforms to the Editors' Code of Practice that were introduced with effect from 1 January 1998 were neither welcomed by the press nor much observed in the longer term. Lord Smith described these as:⁹³⁹³ p31, lines 11-18, ibid

"... carried through, sometimes, I suspect, with gritted teeth amongst the editors and proprietors, because there was a public wind at the back of change. But that moment did not last for terribly long, and the equilibrium returned more or less to normal, which makes it very difficult for government to take strident steps to restrain press activity."

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¶7.9 Lord Smith said that, following the death of Princess Diana, Lord Wakeham, and by extension the PCC, "were stepping up to the plate and being a regulator".⁹⁴⁹⁴ p20, lines 6-9, Lord Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Afternoon- Hearing-22-May-20121.pdf But he, along with other witnesses to the Inquiry, stressed that the changes in press behaviour were of short duration:⁹⁵⁹⁵ pp. 37-38, lines 16-1, Lord Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Afternoon-Hearing-22-May-20121.pdf

"I think it's probably fair to say that for the two or three years following the Wakeham changes immediately after the death of Diana, the conduct of the press did improve. Certainly in terms of the specifics of the changes, their approach to the coverage of the princes, handling of children and minors, some of the intrusive taking of photographs, there was a palpable change of behaviour. But after that two to three- year period, I think it began to slip, and as we know from all the evidence that you've been receiving, it slipped grievously in quite a number of ways."

¶7.10 Evidently, the same dynamics that played in the aftermath of the reporting of the Royal Commissions and the reports of Sir David Calcutt were also apparent in the industry's response D at this point. The industry moved quickly to make a number of high profile but nevertheless limited changes which were in any event only begrudgingly accepted. In this case, they were ably guided by the dextrous political hand of Lord Wakeham who moved swiftly and adroitly to secure political backing for an industry-led response to these events.⁹⁶⁹⁶ pp29-41, lines 23–5, Lord Wakeham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Morning-Hearing-15-May-2012.pdf

¶7.11 In 2003 Sir Christopher Meyer was appointed Chairman of the PCC, and the evolution of that organisation under his leadership is addressed elsewhere in this Report, in particular in Part J. The organisation which he inherited was hidebound by the structural and cultural constraints which this chapter has served to highlight. It would require a herculean task to break free from them.

Conclusions

¶8.1 At this juncture, it is opportune that I seek to draw out some brief lessons from the history of press self-regulation in the UK since the foundation of the General Council for the Press in 1953, as well as the public policy response to concerns at the conduct of some sections of the press.

¶8.2 It must be made clear that the story is not all bad, in the sense that there have been a number of reforms in press regulation since the Second World War. That said, whilst recognising some of the good work that has been done in response to criticism, to changing attitudes and the clear recommendations of the reports, it is evident that many of the lessons of the post-war period have been ignored. This chapter of the Report attempts to provide only a cursory glance at the recent history of the British press, but it is patent that many of the concerns and practices that led to the establishment of three Royal Commissions, a Committee on privacy and the two reviews led by Sir David Calcutt, are the same as those which have led to the establishment of this Inquiry. This has been a history of strongly recurring themes.

¶8.3 An equally strong recurrence has been concern about the inability of 'self-regulation' to address the underlying problem sufficiently, an inability which has been consistently pointed out by all of those who have examined the problem in depth. The history demonstrates a distinct and enduring resistance to change from within the press. This replication of pattern, of the wheels of history moving in concentric circles, has been demonstrated through the press response to the recommendations made and repeated over the years, the regulators'⁹⁷⁹⁷ the PCC advances the argument that it is not and never has been a regulator in the proper sense of the term, nor a fortiori were its predecessors; what it has done and how it has portrayed itself is analysed in Part J Chapter 2, but the term is used for present purposes response to those recommendations and, it must be said, the response of successive Governments to the clear advice they have been receiving.

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¶8.4 My conclusion on the cyclical nature of press self-regulation is not a novel one. Indeed, it was shared by many of the witnesses to the Inquiry. Lord Brooke suggested that the history of press self-regulation has been one of a distinct reluctance on the part of the industry to implement meaningful change. He noted that such change that has been effected has only been implemented in the face of the very real threat of statutory intervention:⁹⁸⁹⁸ p25, lines 7-17, ibid

"But in the period since 1945, I observe that quite extraneous events, like a Private Members' Bill, actually have had the effect of moving the story on quite a lot. In the case of the 1949 Royal Commission under Sir William Ross, there was a proposal that the press should have a general body of their own, and they showed no sign at all D of doing anything about that until a backbench MP called Mr Simmons in 1952/53 brought in a Private Members' Bill, whereupon effectively almost instantly the press came around to the original recommendation in the Royal Commission."

¶He continued:⁹⁹⁹⁹ p25, lines 18-24, ibid

"In the same way, in 1989 – I noticed the text of Mr Dorrell's account of how the Calcutt 1 was set up, but its actual genesis was the report stage of Mr Worthington's bill entitled "Right of Reply" in 1989, and the government minister responding at the dispatch box on that bill basically foreshadowed Calcutt 1 in his response. So these things happen as a result of different, frequently unrelated episodes."

¶8.5 Lord Brooke perceived a causal link between the credible threat by policy makers of the introduction of statutory regulation for the press, and the introduction by the industry of limited measures to improve the existing system of self-regulation for the press, a system that has worked overall to the distinct advantage of the industry:¹⁰⁰¹⁰⁰ pp25-26, lines 25-4, ibid

"The other Royal Commissions and Lord Younger's Commission weren't quite so fruitful, but then there wasn't a Private Member around to help."

¶8.6 The same reasoning has been pursued more forthrightly in submissions to the Inquiry by Professor Brian Cathcart of Kingston University. He told the Inquiry that in his view the history of press reform is one of failure to introduce measures recommended in terms to improve public trust in both the press and the system of self–regulation.¹⁰¹¹⁰¹ pp100-101, lines 13-15, Professor Brian Cathcart, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/ Transcript-of-Morning-Hearing-8-December-20111.pdf He said that the attitude of the press to change in this area has been one of foot-dragging and obfuscation, with progress only occurring under duress:¹⁰²¹⁰² p100, lines 14-23, ibid

"I think you go back to the first Royal Commission, 1946 to 1949, I think, which reports, recommends the setting-up of a Press Council and it takes three and a half years before the press – and an awful lot of leaning on and threats of legislation before the press will set something up. That, if you look through the history, and this is another thing that Hacked Off is doing, that sort of conduct is repeated and repeated."

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¶8.7 Similar observations were made by the Media Standards Trust, which submitted to the Inquiry a detailed analysis of the cycle of industry-led reform.¹⁰³¹⁰³ pp12-13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Media-Standards-Trust. pdf Dr Martin Moore argued that in the face of considerable public concerns prompting the Royal Commission and other investigations into the behaviour of the press, the industry has been unmoved until "threatened with the Damoclean sword of some form of statutory regulation."¹⁰⁴¹⁰⁴ p5, para 32, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Dr-Martin- Moore.pdf Further, Dr Moore has said the paucity of reforms implemented by the industry has led to a cycle of "subsequent commissions, often within a decade" examining to all intents and purposes the same conduct that had originally generated those public concerns.¹⁰⁵¹⁰⁵ ibid

¶8.8 The MediaWise Trust agreed, recalling with some concern that recommendations made by the D Ross Commission in 1949, repeated in the report of the Shawcross Commission of 1962 and again by Lord McGregor in 1974, have yet to be implemented, particularly with regard to the prominence of apologies and corrections. However, in a somewhat different vein from other commentators, the Mediawise Trust suggested that it is incorrect to describe the history as cyclical, as this tends to obscure the fact that the calls for reform became increasingly strident and more forthright with time, and the refusal of the press to implement the changes at the heart of those reports more obdurate.

¶8.9 The historical lessons are clear enough, but the challenge for today is whether any of them will be taken on board. Those who complain about the conduct of the press¹⁰⁶¹⁰⁶ although this question relates to "the press" generally, throughout this Report reference is usually made to "a section of the press". As has been and will be emphasised, this is to underline the good work of most journalists and the enormous value that the press can bring to our democratic society. The fact that most of the press do not behave in a way that requires regulation does not, however, negate the need for such regulation to deal with those whose behaviour does not meet the high standards of the majorityShow full note are entitled to ask "How many chances must the press be given before something is done about it?" The problem is to decide whether that complaint is justified and, if it is, what that "something" is.

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