"GUARANTEE OF MEDIA FREEDOM

(1) The Secretary of State for Culture, Olympics, Media and Sport and other Ministers of the Crown and all with responsibility for matters relating to the media must uphold the freedom of the press and its independence from the executive. (2) The Secretary of State for Culture, Olympics, Media and Sport must have regard to: (a) the importance of the freedom and integrity of the media; (b) the right of the media and the public to receive and impart information without interference by public authorities; (c) the need to defend the independence of the media. (3) Interference with the activities of the media shall be lawful only insofar as it is for a legitimate purpose and is necessary in a democratic society, having full regard to the importance of media freedom in a democracy."

¶15.4 Mr Tomlinson explained the intension behind, and anticipated effect of, this proposal:345

"It's partly intended as a statement of, as it were, quasi-constitutional principle. Like the independence of the judiciary is a fundamental constitutional principle, so the independence of the media should be as well. What that means in practice is that if the Secretary of State of is making decisions which will impact on the way the media operates, the Secretary of State must be guided by this principle. And there are circumstances in which one could envisage situations where that would force the Secretary of State to go in one direction rather than another."

¶15.5 Lord Prescott does not advocate an explicit role defending freedom of expression but he

argues that any new framework should expressly require any regulator to have regard to case law under the ECHR and the HRA.346

¶15.6 Ms Harman states that the Labour Party believes that any Bill establishing a new system

should also include constitutional safeguards for the freedom of the press.347 She goes on to suggest that this might be done via the introduction of a statutory public interest defence. Ms Harman is not alone in arguing for a public interest defence, which is raised by the MST, Hacked Off, MediaWise, the Coordinating Committee for Media Reform, Max Mosley, Roy Greenslade and the Media Regulation Roundtable.

¶15.7 I have dealt earlier348 with the problems associated with the creation of statutory public interest defences in criminal law and I will not revisit that here.

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¶Chapter 4 | Other Proposals Submitted to the Inquiry

Protection of journalists

¶Whistleblowing and a conscience clause 16.1 Lord Hunt suggested that a new regulatory structure should have a whistleblowing hotline349

and the CCMR recommends that the new regulatory body should establish a whistleblower code.350

¶16.2 The NUJ makes a strong case that there should be some protection for journalists who are

put under pressure to behave unethically. To this end, it recommends that all journalists' contracts should include a 'Conscience Clause' to prevent a journalist from being dismissed for a refusal to breach ethical standards:351

"A journalist has the right to refuse assignments or be identified as the creator of editorial which would break the letter of [sic] the spirit of the Code. No journalist should be disciplined or suffer detriment to their career for asserting his/her rights to act according to the Code."

¶16.3 Specifically the NUJ recommends that a new standards code should include a provision

requiring the inclusion of such a clause in journalists' contracts. The CCMR argued that a news standards code should itself include a conscience clause supporting journalists who refuse to work in ways that breach the code of practice.352 Similarly Professor Greenslade argues for the inclusion of a conscience clause within the code and for the protection of journalists who act as whistleblowers or who invoke the conscience clause.353

¶16.4 When this was put to Rupert Murdoch as a suggestion he agreed that a conscience clause along those lines in employment contracts would be a good idea:354

"Q: Are you aware that the NUJ has for a long time been seeking the insertion in contracts of employment, not just at News International but other titles, of a conscience clause, that's to say a provision by which it is forbidden to discipline a journalist who refuses to do something which is unethical or against the code of practice? A. I have never heard of it. LORD JUSTICE LEVESON: Do you think it's a good idea? A. Yes. I think – I wouldn't do it through the NUJ, but I think for – LORD JUSTICE LEVESON: No, but the clause. A. For us to say as a condition of employment in a contract for a journalist they have the right to do that, I think that's a good idea."

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¶PART K | Regulatory Models for the Future

¶Moral rights

¶16.5 Professor Chris Frost raised the issue of the position of journalists in relation to moral

rights. Essentially, the Berne Convention requires recognition of two inalienable rights of authors in literary and artistic works. The first is the right (even after transfer of copyright) to claim authorship of a work ('the paternity right') and the section is the right to object to any distortion, mutilation or other modification of a work which would be prejudicial to the author's honour or reputation (the 'integrity right').355 Under the Copyright Designs and Patents Act 1998 (CDPA), these rights do not apply in relation to any work made for the purpose of reporting current events or in relation to a literary work made available for publication in a newspaper, magazine or similar periodical.356 Professor Frost argued that these moral rights should be extended to cover journalistic work:357

"So I can prevent material being published under my byline if I disagree with it. In this instance, if I think it's unethical. Equally, I could argue about material that I had written being changed to make it unethical. That doesn't stop a newspaper publishing it without a byline or with what's known as a cod-byline, an invented byline of a fictional person, but it does mean that it wouldn't be there under my byline and that's quite important to a number of journalists who have become very upset – quite rightly so – when stories are changed or completely rewritten or a headline is put on the top of them which does not reflect what they wrote and what they know to be accurate and ethical."

¶16.6 Given that this was a new issue that had not been raised before the Inquiry before, I invited

press Core Participants to make submissions on the matter; two, the Telegraph Media Group (TMG) and News International (NI) did so. Both advanced similar arguments. The exemptions in the CDPA had been inserted into the Bill that subsequently became the CDPA. News International provided evidence that:358

"It was reported to the House of Lords in the course of the debates that the government had received many representations about the dire effect of moral rights on newspapers, particularly, it seems, from the editor of the Economist, who had given evidence to the committee. Lord Lloyd of Hampstead said that: "intolerable complications would be created if it were applied to newspapers, magazines and composite works". Lord McGregor, a Labour spokesman and former Chairman of the Royal Commission on the Press, concluded that "The exercise of moral rights in such circumstances would have posed a threat to an editor's right to edit and would have emasculated his responsibility for the form and content of his newspaper." Lord Hemingford stated: "allowing a reporter the right to insist on being identified or not to suffer alteration to what he has written or possibly dictated over the telephone from notes would be unrealistic and impractical in a newspaper context.""

¶16.7 TMG argued that to require either the paternity right or the integrity right would delay the

news and be wholly impractical for the newspapers to operate.359 TMG felt that it was not clear whether Professor Frost was arguing for the repeal of the exemption provisions for

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¶Chapter 4 | Other Proposals Submitted to the Inquiry

both rights or only in respect of integrity and I share that uncertainty. It is clear to me that the context in which he raised the issue was that of integrity but that a combination of both rights, namely a right to assert authorship and a right to prevent 'distortion, mutilation or other modification' of a work, would indeed be problematic in a newspaper environment. It is less clear to me that allowing the integrity right on its own would cause the problems complained of by TMG and NI. If a journalist retained his integrity right but not his paternity right then, in any case where a publisher needed to make changes to a text and did not have time to seek the permission of the author, they could simply remove the attribution. I am not, however, clear that this would be a desirable outcome for journalists, who might find themselves systematically denied attribution as a precautionary measure where articles have been edited after submission.

¶16.8 NI also drew my attention to the 2009 consultation by the UK Intellectual Property Office,

resulting in a policy statement that the Government does not propose to alter the UK's moral rights regime. Whilst this consultation did indeed consider the position of moral rights in the UK, it did so only in the context of proposed changes in relation to orphan works and the possibility of introducing an exception in relation to parody.360 I do not, therefore, consider that this constitutes a recent consideration by the Government of the issues raised by Professor Frost. NI further submitted that the Inquiry should not consider recommending the repeal of a statutory provision founded on a thorough debate without receiving full evidence on the implications of such a repeal.³⁶¹³⁶¹ p70, lines 16-19, Christopher Blackhurst, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Morning-Hearing-10-January-2012.pdf fourth witness statement of Rupert Murdoch dated 31 October 2012: gives details of an informal drink with Mr Rupert Murdoch immediately after his appointment as editor of the NoTW p2, para 9 and 14, ibid p2, Chief Constable Mike Cunningham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Exhibit-CCMC13.pdf; p5, para 13.4, Chief Constable Colin Port, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/04/Exhibit-CP71.pdf p8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-statement-of-Jonathan-Stephens3. pdf p18, para 66, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Closing-Submission-from-News- International.pdf pp18-19, [lines 24-1], Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript- of-Morning-Hearing-9-December-2011.pdfShow full note

¶16.9 I recognise the real force of this point and I do not feel that I have heard enough evidence on

the matter to reach a fixed conclusion. I do, however, think that this is an issue that is worth looking at further. I would, therefore, encourage the Government to find an early opportunity to consult on it, with a view to identifying whether removing the exemptions for reporting on current affairs and material provided for publication in a newspaper or journal in relation to either or both of paternity and integrity rights would improve protection of journalists and journalistic standards.

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Chapter 5 International Comparators