Lord Justice Leveson’s committee, the composition of which has been heavily criticised on the grounds that it contains few journalists and none with knowledge of mid-market or popular newspaper journalism, is likely to take a year or two to deliberate and prepare its report. The BJR asked five journalists, a politician and a lawyer – all of whom would have been suitable members of the Leveson committee – to give their views on how the problems of the press should be addressed.

Industry-wide power to impose sanctions and fines

Donald Trelford

All four official inquiries into the standards of the British press since the Second World War – Ross (1947-49), Shawcross (1962), McGregor (1974-77) and Calcutt (1990 and 1992) – have raised fears about statutory controls but have resulted in fine-tuning of the methods of self-regulation. I see no reason why the fifth inquiry should be any different. Given the choice between a controlled press and a sometimes slipshod and tawdry press, a democracy must insist on the latter.

The whole process might have been speeded up if the newspapers had accepted the proposals of the first inquiry, set up by the post-war Labour government under Sir David Ross, head of an Oxford college. He called for a General Council of the Press with a lay chairman and five lay members and a code of conduct for journalists. The stiff-necked newspaper owners rejected all the proposals but, after four years (allowing time for a Conservative government to come to power), reluctantly accepted a Press Council chaired by Major J J Astor, owner of The Times, and containing no outsiders. It took another decade (after Hartley Shawcross’s report) for a lay chairman and members to be appointed and more than three decades before editors agreed to abide by an ethical code.

The Press Council was seriously undermined by Professor Oliver McGregor’s Royal Commission on the Press report in 1977 and by what a later Press Council chairman, Sir Louis Blom-Cooper, described as “the drip-drip of discredit” throughout the 1980s. It was no real surprise when Sir David Calcutt applied the coup de grace and proposed that it be replaced by a Press Complaints Commission, allowing the industry a year in which to get its act together. The alternative was Calcutt Stage 2 – a statutory press tribunal. Faced with this threat, the Newspaper Publishers’ Association set up the PCC in haste, with a code of conduct agreed by the editors.

I was the odd man out among editors in opposing the rush to create the PCC. As I told the Media Society at the time: “The PCC was set up by an industry in panic…What the government and Calcutt effectively said was: ‘Here is a cliff we think you’ll fall over, but if you manage to walk along this narrow path, you may just avoid it.’ Lord McGregor [as he had become] and the NPA are taking a great risk in rising to this challenge, because it appears to leave them no escape if they fail.” It seemed to me unsafe to gamble everything on the good conduct of the tabloid press. It needed only one more scandal for the whole statutory framework to land on our heads. I agreed with Hugo Young, who wrote that it was “time to end the professional blackmail by which it is pretended that the interests of The Sun have anything to do with the interests of The Guardian”. In other words, why should the quality press face restraints on serious investigative journalism just because the red-tops misbehave? That question is still being asked today. No one has yet suggested a way of preventing the one without impinging on the other.

No scandal emerged in Calcutt’s time-frame, so the PCC survived. Until now, that is. It is in a similar position to that faced by the Press Council in 1990, being portrayed as a weak regulator and described in Parliament by Prime Minister David Cameron as “a failed body”. Leveson is likely to replace it with something stronger, perhaps on the lines indicated by Paul Dacre – some sort of Press Standards Commission (better than his suggested ombudsman), retaining the complaints function, which actually works well, but with the resources to conduct investigations into press conduct and the power to force all newspapers to join and, controversially, to impose punitive sanctions such as fines.

I would add an annual audit of the press, using academic research to check back on how accurately a sample of major stories has been reported. I remember, when I first became an editor, a riot in London in which a protester died. The papers all agreed that the policing of the riot was to blame. At the subsequent public inquiry a totally different picture emerged, showing that the papers had all got it wrong. This incident prompted my interest in retrospective academic study of press coverage – not as a blame game, but to help editors understand the limitations of instant reporting and to discourage the tendency for newspapers to claim omniscience. Hillsborough provides another and better example of this.

Ross, whose 10 recommendations for the press Leveson might do well to revisit (if he hasn’t already), also reviewed the education and training of journalists. I would like to see this form part of the remit of a new Press Standards Commission. I would like to see courses on newspaper ethics and the practical application of the code of conduct. An industry in decline will say it cannot afford to pay for all this, but it might reasonably claim government, European, international or charity funds for its educational role.

Any inquiry into the standards of the press is entitled to ask: have they improved since the last time and, if not, has the PCC been an adequate regulator? The phone-hacking scandal suggests a No to the first question, and the PCC’s meek acceptance of News International’s denials suggests a double negative. But this is misleading. The extent of phone-hacking was not a failure of regulation, but the result of a series of criminal acts that the Murdoch management prevaricated about and which the police failed to pursue thoroughly. The PCC was not set up to conduct investigations of that sort. The Murdoch empire is central to any inquiry into press standards, not just because of the phone-hacking disclosures and the group’s handling of them, but because Rupert Murdoch himself has been the dominant force in British journalism for more than four decades. Setting aside his undoubted achievements – the creation of The Sun, the destruction of the corrupt printing unions and his philanthropic support of the loss-making Times and Sunday Times – he has been plausibly blamed for the fiercely increased competitiveness in the popular market that led to ethical corner-cutting.

Now, it seems safe to say, his era is ending. That famous appearance before MPs on the Culture, Media and Sport Select Committee was totemic – the old man past it, the young man not up to it, the loyal wife bashing an assailant who seemed to symbolise all Murdoch’s critics rolled into one. Now his American shareholders may pull the rug from under the Murdoch dynasty. No political leader will want to be associated with him and the blessing or curse of his newspapers’ support will no longer be such a big deal. This, the press might argue, heralds a new start, shorn of the malign influence of the Dirty Digger. They might well plead: give us another chance, m’lord.

Newspapers are no longer the prime means by which the public gets its information or forms its opinions, and their sales are falling all the time. Their online content would presumably be subject to the same restraints as the newsprint version, so why not apply controls to other editorial content on the internet – and how, in practice, could that be done? The whole idea of controlling newsprint alone looks curiously outdated. In any event, David Cameron, a party leader without a Parliamentary majority, is in no position to hammer the press and can have no interest in doing so before a general election, whatever Leveson may recommend and whatever vengeful MPs might want. So, with some more fine-tuning, self-regulation seems likely to get another reprieve. Until the next time, that is.

Donald Trelford was editor of The Observer, 1975-93, and is emeritus professor of journalism studies at Sheffield University. He has been a member of the council of the Advertising Standards Authority and of the Competition Commission’s newspaper panel.

For justice, there must be a more powerful PCC

Geoffrey Bindman

The need for a free press has been proved over and over again by the revelation of major public scandals which would not otherwise have come to light. The disclosure by The Daily Telegraph and The Guardian of dishonest expenses claims by members of parliament, and the hacking of telephones and emails, are two egregious examples. And freedom of expression is universally acknowledged as a fundamental human right. Yet, as Isaiah Berlin has taught us, ethical values are sometimes in conflict with each other. Where two values cannot be reconciled, a balance has to be struck to give maximum effect to both of them.

The United Nations agreed in 1948, in article 19 of the Universal Declaration of Human Rights: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” Yet article 12 of the Declaration prohibits arbitrary interference with “privacy, family, home or correspondence” or “attacks upon his honour or reputation”. These principles, in slightly different language, were adopted in the European Human Rights Convention and in the Human Rights Act 1998, binding on the United Kingdom and its judiciary.

If article 12 is to be given effect, it must restrict the freedom granted by article 19. And it applies to the media as it does to everyone else. Indeed the need to impose some limits on the absolute freedom of the press to publish whatever it chooses is hardly controversial. It could not expect to be permitted to incite crime or racial hatred, or to publish defamatory falsehoods. The crucial questions are: where should the limits be drawn and how should they be enforced? Investigative journalism advances the public interest by holding to account the government and those others who wield economic and political power. It is only where private interests, such as those spelled out in article 12, outweigh the public interest in any particular situation that restrictions on free expression can be justified. How and where is that balance to be struck?

The actions of journalists in pursuit of information may infringe the criminal law. Hacking of telephones and emails falls into that category (section 1 of the Regulation of Investigatory Powers Act 2000). The offence is committed by a person who intentionally and without lawful authority intercepts any communication “in the course of its transmission” by means of a telecommunications system. The Metropolitan Police, according to former assistant commissioner John Yates, interpreted “in the course of communication” narrowly, so as to limit culpability to cases where the hacking took place before the recipient had read the communication. This was presented as an excuse for the inadequate investigation by police of the numerous cases of hacking by the News of the World. The Director of Public Prosecutions said this interpretation was wrong, and subsequent convictions have confirmed his view to be correct. In any event an alternative basis of criminal liability is available: section 1 of the Computer Misuse Act 1990, which makes it an offence knowingly to cause a computer to perform any function with intent to secure unauthorised access to any programme or data held in any computer. Both offences carry a maximum sentence of two years imprisonment.

More controversial has been the development of civil remedies for defamation and for invasion of privacy, the latter stimulated by article 8 of the European Human Rights Convention, embodied in the Human Rights Act 1998 and echoing article 12 of the Universal Declaration. The purpose of defamation law, of course, is to provide a remedy for the publication of false and damaging allegations. While no one could reasonably defend the propagation of harmful falsehoods, the law has been much criticised – by, for example, Index on Censorship – for favouring claimants at the expense of press freedom. The campaign to simplify the adjudication of claims and shift the balance against the threat of injunctions, high awards of damages and high legal costs is having some effect, and there is a Defamation Bill in Parliament which will change the law in this direction. The committee considering the bill has urged stronger measures to simplify procedures and thereby reduce legal costs, including a greater emphasis on mediation.

Claimant ‘had a reasonable expectation of privacy’

There has long been a basis in English common law for the protection of privacy in the notion of confidence or confidentiality, the invasion of which has long allowed the possibility of an injunction as well as an award of damages. That protection has been strengthened in the case law of the Court of Human Rights in Strasbourg and in recent decisions of the English courts. The latest illustration is the widely publicised case of Max Mosley and the News of the World, in which Mr Justice Eady in the High Court ordered the newspaper to pay Mr Mosley £60,000 damages after it had published a story headlined “F1 boss has sick Nazi orgy with 5 hookers.” The judge concluded “the claimant had a reasonable expectation of privacy in relation to sexual activities (albeit unconventional) carried on between consenting adults on private property. I found that there was no evidence that the gathering on March 28, 2008 was intended to be an enactment of Nazi behaviour or adoption of any of its attitudes. Nor was it a fact. I see no genuine basis that the participants mocked the victims of the Holocaust”. Accepting that many would regard such behaviour with “distaste and moral disapproval”, he concluded that this was no justification for intrusion into Mr Mosley’s personal privacy.

Although the judge went to considerable lengths to identify the factors which led him to put privacy ahead of the paper’s freedom to publish what undoubtedly many of its readers would find interesting, the fact remains that an unelected judge is given power to determine subjectively what the press may or may not publish, and punish it if it transgresses. (Mr Mosley pursued the paper into France, where 3,000 copies were distributed, and the Paris judge ordered News Group Newspapers to pay a €10,000 (£8,585) fine, €7,000 in damages, and €15,000 in legal costs.) Mosley’s claim in the European Court of Human Rights that the newspaper had a duty to notify him of the article in advance of publication failed. So a newspaper may be able to publish a story, which unlawfully invades privacy if it does so, without advance warning and is prepared to face the relatively moderate financial consequences.

As a media solicitor over five decades I have acted for individuals whose reputations have been trashed by dishonest or carelessly inaccurate stories which have destroyed their lives. I have also acted for those who have published stories in good faith and have then been dragged through the courts by the rich and vindictive. The law has to provide redress in both situations. If there are to be legal limits on the publication of true facts in the public interest, that very phrase, difficult as it may be to define, is the best general criterion for indentifying the line to be drawn. Whatever test is applied, somebody has to decide whether it has been satisfied in every particular case.

Judges are well qualified to do it but litigation is expensive and increasingly beyond the means of the ordinary citizen. The Press Complaints Commission, or whatever replaces it, should be capable of resolving most if not all cases at much less cost. It has failed to do so because it has lacked adequate resources and powers and has been insufficiently impartial because of the preponderance of those representing media interests among its members. The way forward is self-regulation by a more effective PCC, with power to impose limited sanctions, in order to resolve most complaints without resort to the courts. For those cases which do end up in court, cheaper and simpler procedures need to be introduced.

Sir Geoffrey Bindman QC is a solicitor specialising in human rights law and is a member of the BJR editorial board

A new age of transparency – and let the public know

Linda Christmas

Let’s start with the positive. Since I first walked into a newspaper office about 40 years ago, some things have improved. The heavy drinking has stopped (at least during the day); sexism is less rampant – I doubt if any man would now run a competition to find out which female had the best bum (I came second); and the claiming of expenses is more controlled. During my first week, a colleague, whose father was a senior law officer, showed me how to complete my expense sheets. It was a demeaning lesson in petty pilfering. And despite the drinking, the sexism and the petty pilfering, the content of newspapers was, for the most part, laudable, legally acquired and a little dull. We were afraid to be frivolous. Nonetheless, newspapers sold in impressive quantities.

How that has changed. Today’s newspaper content is too often wince-makingly frivolous, too often illegally or unethically gained, and too often unreliable. Editors no longer chastise reporters who make errors or those who fly kites that turn out to be far from airworthy. Indeed they encourage reporters to keep pushing the boundaries to “get the story”. Anything goes. In part, this is a reflection of the changes that have happened to society in general. The age of deference has given way to the age of disrespect. The great gift of the cultural shift of the 1960s – the right to question – has been abused. There is a lack of respect for most institutions (the monarchy, the church, politicians, doctors and teachers) and for individual privacy and human dignity.

I finally lost patience with all this when asked to be a judge for one of the annual newspaper awards. The men on the panel wanted to give the Scoop of the Year award to the paper that sent a reporter undercover for months to snatch a picture of Kate Moss taking drugs. Was this really “in the public interest”? Was it really the best story of the year? I made a fuss and have not been invited to judge awards since.

So here we are, all of us, in the gutter waiting for Lord Justice Leveson to decide our fate. Yes, all of us. In the public’s eye we are all tarred. The tabloids may be the worst offenders, but some of the so-called quality press is hardly stain-free. They make up quotes, hiding behind anonymous sources, present gossip and rumour as fact and speculate rather than report. We have become obsessed with what might happen rather than what is happening. How do I know what goes on in newspapers? I ran City University’s postgraduate diploma in newspaper journalism for 15 years. My students did internships on all the national newspapers and returned with tales to tell. We learned the black arts at first hand.

What to do? There’s no point in further legislation or regulation if the press continues along the same path. Newspapers (aided by well-paid lawyers) will only find ingenious ways to circumvent any rules. How the press behave is now a moral and ethical question that can be answered only from within. Editors and owners should openly admit that standards have dropped and take steps, before Leveson reports, to revise the news agenda and reform the culture of newsgathering. The shabby behaviour of politicians, bankers, cricketers and journalists has been exposed and the public is in the mood for reform – that’s why the surrounds of St Paul’s Cathedral became a campsite. Perhaps protesters should camp outside various newspaper offices too.

A new age of transparency

The press needs to acknowledge the public’s desire for change which was ignited by the “outing” of practices that many have known about and either approved or turned a blind eye to. No excuses that 90 per cent of it was “in the public interest” and only a tiny bit was over the top. So I suggest an in-house sea-change. A dictat from the top detailing what is permissible and what is not, plus tattooing the office walls with a definition and examples of what exactly is “in the public interest”. Once the new credo is in place, each paper should make the new rules known to the public – we should enter a new age of transparency. Obviously newspapers will have different agendas, but do the rules need to be different too? Just as obviously there is a need to ban illegal practices, but also we need to:

• Severely limit the use of anonymous quotes. Our readers are media savvy and believe that most are made up.
• Stop reporters hiding behind “I can’t reveal my sources.” Surely they can discuss sources with their editor, who can then decide on the merits of the story?
• Set some rules for “citizen journalists” who are paid to take snaps on their mobiles of major and minor public figure caught wobbling on an evening out or dumping stuff into bins in St James’s Park.
• Limit the use of investigative techniques (private detectives, undercover reporting, “stings” of any kind, etc) to a small band of experienced journalists and a select tranche of stories truly “in the public interest”.
• Admit when something is wrong and give the folk concerned a prominent right of reply.
• Get some management training. The editorial side of newspapers is appallingly managed. Reporters are promoted to desk jobs without a day’s training, and which editor has ever been on a management course? If they had they would understand the concept of “leadership” and know how to get the best out of their staff without simply yelling “Get the story...” Proper training would ensure that no editor or senior executive could, in future, deny that they know what is going on in their newspapers. Delegation is an art, not a means to dodge responsibility.

It’s up to us. We live in an amoral world and so far newspapers have capitalised on that unhappy fact. Rebuilding trust and credibility will take time but it is not that difficult. New rules and new boundaries need not be so harsh that they endanger serious/investigative journalism. In fact they could enhance such endeavours rather than harm them.

Linda Christmas has worked in print and television and is an emeritus fellow of the Department of Journalism at City University, London. She has served on the newspaper panel of the Competition Commission, the executive committee of the Commonwealth Press Union, and as an adviser to the Guardian Foundation. She currently teaches journalism, including ethics, on a wide variety of overseas newspapers.

PCC2 can learn a lot about privacy from TV

Steve Hewlett

The Leveson Inquiry, set up in the midst of quite possibly the worst crisis ever to engulf the press (and journalism) in modern times has, on the face of it, a truly monumental task. The terms of reference have been drawn so wide as to raise genuine fears that the outcome might either prove genuinely repressive or, conversely, utterly meaningless as the good Lord Chief Justice and his panel gradually sink under the weight of their own undertaking. It’s easy to see why David Cameron established Leveson in this way – the viciously toxic combination of Rupert Murdoch’s dominance of the newspaper marketplace and the threat of his assuming a similarly dominant position in TV via BSkyB, along with the outrageous behaviour of journalists from at least one of his newspapers, saw to that. But throw in senior politicians’ collective mea culpa and evident embarrassment about turning a blind eye in pursuit of “favourable” coverage, and Rebecca Brooks’s infamous “enemies list” – with all that implies about the use of News International’s media power for political and corporate ends – and the true scale of the initial political expectations on Leveson become clear.

Of course, with the inquiry having been set up with such grand ambitions in the heat of the moment, we are all now metaphorically walking round slightly dazed and scratching our heads. As the scale of what lies ahead – and the potential pitfalls – become clearer, it is most definitely the morning after the night before. Indeed you can already sense retreat and even moderation in the air. The once-frequent clarion calls for statutory regulation are now few and far between as people contemplate the almost inevitable corollary – the spectre of a licensed press. After all, that is where television regulation – offered up by some as a model for Leveson to adopt for the press – has its strength: the regulator can not only levy a fine on those that don’t comply, but can but take away their licence to broadcast. Yet would anyone contemplate a state-backed regulator removing someone’s right to publish? Free speech be damned? I doubt it.

In reality, the press is currently to be found behaving itself, and there is already a consensus forming around how a reformed PCC must differ from its “failed” predecessor. As one senior former editor put it, the days of the “blind referee” must be seen to be over. More independent commissioners must automatically sit on the successor to PressBof, the financing body, and whatever replaces the present code committee. Of course it is vital that editors take the leading role here, but the absence of independent commissioners currently appears glaring. PCC2 must have investigative powers and the ability to institute enquiries on its own initiative irrespective of whether a complaint from anyone involved in a particular story has been received. And it must have tougher powers to enforce corrections – with due prominence – and maybe even the power to impose fines in the case of serious code violations.

So far so good, but I would suggest that as a condition of membership newspapers and magazines – and perhaps online publishers too – should commit themselves to principles of corporate governance and editorial compliance which might be annually audited by PCC2. What do I mean by that? Having spent most of my career in TV I believe, while remaining quite convinced that the last thing Britain needs is statutory regulation of its free press, that there are valuable lessons to be learnt from television.

In TV-land, proposals to invade someone’s privacy – with surveillance, secret recording and so on – must go through a formal process of approval. Stage one requires the journalist to convince their editor that sufficient prima facie evidence exists about the activities of an individual or company or whatever to justify the intrusion occasioned by whatever measures are being proposed to get or prove the story. If it’s serious enough then someone higher up the TV company – not usually operationally involved, but with the requisite background and experience – might have to be consulted. And if the story is so serious and the public interest strong enough – and if the evidence appears to stack up – then the covert operation goes ahead. Even then, once the material has been gathered, a further approval to use it, based on what, if anything, has been discovered and whether in that context the invasion of privacy still appears warranted, must be obtained.

This might sound bureaucratic but it creates a paper trail for decision making, and forces proper consideration of the issues. But significantly it doesn’t dictate where those all-important lines around what is or isn’t in the “public interest” are drawn and it’s all within the company. And that paper trail showing a proper process might be something the PCC – and even judges – take into consideration when passing judgment on complaints about unwarranted intrusion. In any event, the Wild-West, devil-may-care way in which individuals’ privacy too often appears to have been ridden over roughshod really cannot continue. And if, to satisfy public demands for transparency and reassurance, there needs to be an annual audit of PCC2, it might be undertaken by Ofcom, the statutory but at-arms-length communications regulator (and certainly not by any of the publishers themselves).

But here’s the key issue opponents of statutory regulation are still struggling with: how to ensure compliance – otherwise known as the Richard Desmond/Express Group problem – since if any substantial part of the press remains outside PCC2, the system looks broken from the start. Various carrots have been suggested. Maybe the VAT exemption currently enjoyed by newspapers could be contingent upon membership of PCC2. Maybe, over time, membership could come to be seen as a positive advantage, a kitemark of ethical standards if you like. Maybe evidence of compliance with PCC2 codes and processes and submitting to the annual audit might be specifically identified as factors to be taken into account – in a publisher’s favour – by judges and other tribunals ruling on such matters. And, to finish up on this side of the equation, perhaps Leveson should recommend that public interest defence clauses be inserted into the Bribery Act and Regulation of Investigatory Powers Act, to allow journalists and media organisations more freedom to act in the public interest when justification can be demonstrated.

But this bow is still at least one string short. How can we prevent another Murdoch-style concentration of media ownership and maintain healthy plurality in the marketplace? In theory it’s simple – specify limits to shares of any/all media market segments and require all cross-media ownership transactions above a certain threshold to pass through a Competition Commission/Ofcom-style public interest test. The trouble is that in practice, with press circulations in relentless decline driving consolidation and cross-media ownership in the cause of commercial survival in a converging media market, it would be all too easy to kill off significant sections of our commercial media altogether. On this front at least, I think Leveson is to be wished the very best of luck.

Steve Hewlett presents The Media Showon BBC Radio 4 and writes a media column for The Guardian.

Ombudsman can detoxify a system running on empty

Brian Hitchen

Prime Minister David Cameron was wrong to describe the PCC as a “broken machine” and condemn it to the scrapyard. It may have bald tyres and a serious rattle in its gearbox, but it can be fixed and vastly improved without any outside interference. Unfortunately, it is no longer the efficient, unbiased machine it was during my four years as a founding member, when its first chairman, Lord McGregor of Durris, held it in his iron grip.

Back in 1990 newspapers were again under attack from politicians wanting to throttle press freedom. The Home Office set up a departmental committee, headed by Sir David Calcutt, to investigate whether a body with formal legal powers should be created to regulate the newspaper industry. Rather than suggesting new statutory controls, it recommended the setting up of a new Press Complaints Commission in place of the Press Council. The new commission would have 18 months to demonstrate “that non-statutory self-regulation can be made to work effectively” and together with then PCC Director Mark Bolland – the best diplomatic horse-trader I have ever come across – Lord McGregor convinced a still-critical Calcutt that the PCC had established a strong hold on the behaviour of British newspapers and magazines. And that with the new Code of Practice there was no need for statutory legislation curbing press freedom. Tragically, a series of amateurish blunders has changed all that. And once again the Barbarians are hammering at the gates of press freedom.

In its present form, the PCC has become a toxic title. It needs detoxifying, and re-naming, with more experienced minds at its disposal. Its title should become the Press Ombudsman, as suggested by Paul Dacre. The public has no problem understanding the work of an ombudsman. Sceptics might sneer that this is akin to painting out the name Titanic and calling the ship SS Lollipop, but they would be wrong. A name change would go a long way to restore the public’s trust in experienced people with safe hands policing the newspaper industry on their behalf.After her inadequate response to the phone-hacking scandal at the News of the World, the previous chairman, Baroness Buscombe, stepped down. In her place Lord Black of Brentwood, chairman of PressBof, the Press Standards Board of Finance which funds the PCC on behalf of the newspaper industry, has appointed Lord Hunt of Wirral, who has long been a vocal champion of press freedom and has frequently attacked politicians intent on shackling the press.

I understand that in Lord Hunt, Lord Black (as Guy Black, he was a highly-respected, politically astute director of the PCC) believes he has found the ideal chairman to restore public and political confidence. Before entering the House of Lords in 1997, David Hunt served as Welsh Secretary under Margaret Thatcher and minister for the Cabinet Office under John Major. He is a lawyer with vast experience in regulatory matters, which will be invaluable as the Press Ombudsman has to fend off marauding politicians.

Most complaints are directed at local newspapers

The Ombudsman and his (or her) advisers should be able to call upon the services of two professional, independent investigators whenever a complaint requires closer scrutiny. Because of the prohibitive cost of employing them full-time, such investigators should be funded, on a freelance basis, by PressBof. If the Press Ombudsman felt the case required legal scrutiny, he would be empowered to commission the services of a QC, whose fee would also be met by PressBof.

Despite the amount of column inches devoted to the News of the World hacking scandal, such important cases come around only about every two, or even three, years. (It should be remembered that the present storm over the News of the World phone-hacking broke only because of the revelations in a mid-market compact newspaper, The Guardian.) And it should also be remembered that the vast number of complaints are not, as most people think, directed at the red-top tabloids and mid-market titles, but at local newspapers. This is not because local editors go out of their way to break the PCC Code of Conduct, rather that most local newspapers no longer have the staff available to enter into lengthy correspondence with dissatisfied readers. Quite rightly, the aggrieved readers seek justice from the regulatory body.

The PCC’s secretariat works tirelessly to filter serious complaints from the frivolous. It is often a difficult task, because unbalanced people or serial moaners do not always complain by writing a letter in which they use three colours of ink. By their patience, and diligence, the secretariat is often able to present the director with a satisfactory conclusion. Under the Press Ombudsman, the secretariat would remain unchanged.

There should be no room on the board of a Press Ombudsman for lay members who have zero knowledge of the newspaper industry in general, and journalism in particular. They are on the present PCC Board as politically-correct fig leaves. In reality, they are a waste of space. Why should a Press Ombudsman be lumbered with quango people of zero experience? These amateurs should be replaced by respected elder statesmen and women of the newspaper industry, who are retired and, apart from their company pensions, no longer have allegiance to any particular news organisation (and yes, I am a member of this formidable group). Together with the working editors, they could bring their vast experience to the deliberations of the Press Ombudsman, something amateurs are unable to do.

The Criminal Justice Act already covers all aspects of crimes that have allegedly taken place at the News of the World. If, in future, the Ombudsman feels on examining a complaint that crime has been committed, then it is no longer a matter for him or his advisory board. The files would be immediately handed over to the police. No matter how strictly a Press Ombudsman oversees our industry, there will always be rogue journalists, just as there are rogue jockeys and rogue policemen. But it is unfair to tar all the press with the same brush – something that has happened following the recent transgressions.

Hopefully, Lord Justice Leveson will be aware that, every day, editors walk through the legal minefield of the world’s toughest libel laws, contempt of court and the Official Secrets Act. And let us also hope that he will constantly bear in mind the PCC Code of Conduct, which most voluntarily subscribe to and uphold. Britain neither needs nor deserves statutory legislation on press freedom. The press is Britain’s guardian of freedom. And if it is not allowed to tell the people what is going on, who will? The answer is simple. No one.

Brian Hitchen is a former editor of the Daily Star and, subsequently, the Sunday Express. He is now chairman of Brian Hitchen Communications.

Balanced privacy law might be the least bad outcome

George Brock

I blame the Leveson Inquiry’s terms of reference. These ask the inquiry to recommend “a new more effective policy and regulatory regime which supports the integrity and freedom of the press”. No sooner were these words published than editors, pundits, publishers and media lawyers plunged with joyful relish into the business of elaborating “options” for toughening the powers and operation of the existing regulator, the Press Complaints Commission. The idea that the phrasing of the terms of reference is open ended, and doesn’t necessarily imply even the continuation of any self-regulatory or independent regulation, seemed not to occur to anyone at the seminars which Leveson organised as the overture to the formal hearings.

We need to step outside the confines of a debate which starts with the status quo and tries to make it work better. Refining existing regulation is a red herring. Much of the discussion about what might be called “PCC-plus” is displacement activity enjoyed in a comfortably familiar landscape. You could add a powerful, inquiring ombudsman to the PCC system (as suggested by Paul Dacre of the Daily Mail); you could set up a better regulation forum which would escape the cost and delays of court cases (Hugh Tomlinson QC); you could give the PCC statutory powers to compel papers to subscribe to its rules (Baroness Buscombe, lately PCC chairman). All these ideas, and others like them, miss the wood for the trees.

A newspaper regulation regime more effective than the PCC is perfectly imaginable, even if it would be liable to be more complicated, more expensive and slower. Seminars take place almost every week in London to elaborate new refinements. But a system based on ideas formed in the bygone era of a (relatively) profitable and dominant printed press will, in practice, be crippled by difficulties which are being neglected or under-estimated.

Toughening the press regulator means installing statutory powers as a back-up. Baroness Buscombe believes that a better PCC needs the power of law to haul recalcitrant publishers (such as Richard Desmond) into the fold, to protect newsroom whistleblowers and to make directors of newspaper companies responsible for the ethics of their newsrooms. The Lord Chief Justice has said he does not want statutory regulation of the media. The ideas for “more effective” regulation which don’t involve some statutory powers somewhere along the line are few and far between.

The arguments in favour of separate regulation for print made sense until technology offered news publishers the opportunity to transmit news and opinion on multiple platforms and consumers the freedom to switch easily between news on paper, TV, tablet, PC or smartphone. Despite the fact that most consumers of news in the UK still get their information from mainstream media, regulation which does not recognise technological convergence will look increasingly eccentric and indefensible over the next decade. Regulation based only on newspapers will look positively eccentric as the business model for print continues its downward decline.

Restrain bad behaviour and protect good reporting

British society remains divided about whether the law should strengthen the defence of individual privacy or go with the prevailing trend of digital communications technology which reduces the scope of privacy – sometimes with the willing consent of individuals and sometimes against their will. While privacy is an important issue for the news media, it is not solely a media one. Anyone with a cameraphone, whether calling themselves a journalist or not, can publish a picture which someone else claims to be private. That begs a basic question: now that journalism and journalists can’t be identified by their technology, what defines a journalist? How does a regulator know who to regulate?

A “new more effective policy and regulatory regime which supports the integrity and freedom of the press” must balance two conflicting aims. I think there is a better way than resuscitated regulation – a better way to restrain bad behaviour as well as to protect good reporting, shielding the editorial risk-taking that is essential to good journalism.

The main elements would be:

• The PCC dissolves as an institution, although some of its activities might live on (see below).
• A new and more detailed privacy law replaces the current “balance” between Articles 8 and 10 of the Human Rights Act. It would have to spell out in some detail – and this would trigger a public debate – the limits on claims to privacy. Those limits should be set so as not to inhibit or chill proper journalistic inquiry.
• Work continues to reform laws which affect the media, such as libel and contempt – particularly to strengthen defences available to disclosures made in the public interest.
• The penalties for breaking the Data Protection Act include prison (but the possibility of a public interest defence remains).
• News media not otherwise covered by public service broadcasting rules will have stronger defences against legal attack if they can show evidence of the integrity of their newsroom: i.e. rules of conduct and their enforcement, how complaints and inaccuracies are dealt with and publicised, training and transparency.

This package – and it could only work as a combination – avoids the almost insuperable difficulties of including all publishers in a regulation system and raising enough money to run that system. This uses incentives and tries to have them work where it matters most – in the newsroom as reporters and editors think about what they do and how they do it.

Replay recent history while imagining the legal framework outlined above in operation. The late News of the World routinely invaded people’s privacy. But the same paper also did accomplished investigative work. I’m writing this on the day a London court convicted three Pakistani cricketers for corruption of the game thanks to a NoW exposure. The paper’s editor would have to assume that he would find himself fighting legal actions from time to time, often involving libel or privacy. But if he (or she) couldn’t show a clean slate in the newsroom, the paper’s case would be weakened. In short, to protect the reporters who are getting investigative scoops, the editor has to rein in bad conduct in the rest of the newsroom. The risk calculus changes and standards have to be taken more seriously. The incentive to behave a bit better is clear and can be measured by the paper’s lawyers. Websites and papers would not be compelled to show that their reporters were kept to known rules. Declaring and keeping better standards would be a choice. It could be made by newsrooms individually or collectively. A group of publications could develop further their shared standards. They could jointly employ an ombudsman or use a mediation system for complainants or litigants, retaining the skills and techniques which made the PCC effective in that area. Again, no compulsion. The incentive to do better and be seen to do better might be a general desire to enhance a paper’s image or a wish to strengthen legal defences, or both.

The state would be kept out of any detailed surveillance of what happens in a newsroom. A “mixed economy” of regulation would still exist, combining the strict rules governing public service broadcasting with greater latitude for print and online. The argument for this mixture lies in the acknowledgement by the BBC that its journalists could not have broken the stories of MPs’ expenses (which involved payment) or of phone hacking (which would have left the BBC open to accusations of breaching impartiality rules).

Writing a privacy law entails a huge risk for the news media. But given the vast changes wrought in attitudes to privacy by technology, a wellbalanced law would be the least bad outcome. The attempts by judges to “balance” Articles 8 and 10 of the Human Rights Act (those guaranteeing rights to both privacy and to free expression) have not worked well.

The issues raised by the judges will have to be fought in wider debate. The heart of the issue is not phone hacking but the material carried on Gawker or Twitter. I would argue that the public interest does not justify any and every exposure of hypocrisy. But I’d also want the law to disappoint crooks who hope to shield their misdeed behind a new privacy statute. Why should this balance be harder to strike and operate than “co-regulation” or “statutory-lite”?

George Brock is professor and head of journalism at City University London. He worked for The Times 1981-2009.

Redress for all – not only the rich and powerful

Tessa Jowell

I am a former Secretary of State for Culture, a victim of phone hacking and a core participant in the Leveson Inquiry and here, I am writing in a personal capacity. There is no doubt that the debate about press regulation has a long way to go. It will be important that Leveson does not in any way compromise the police investigation, which is likely to run for some time yet. During that time there will be much evidence to sift, there will continue to be further revelations in relation to phone hacking, and public opinion has yet to develop before we can have confidence in a new settlement.

People’s trust in journalists hovers broadly at the same level as for politicians – near the bottom. So to talk about restoring trust in journalists is almost certainly an ask too far. The restoration of confidence is more realistic at a time when people are contracting their circles of trust increasingly to their friends and family. The Leveson Inquiry was set up in response to calls led by Labour to shed light on the scale and extent of phone hacking and other forms of unlawful or intrusive media investigation, and in face of the clear recognition that the self-regulation of the PCC had failed. The symbiotic nature of politics and media, where journalists depend on politicians for stories and politicians depend on journalists to transmit their message, often leaves the public feeling like eavesdroppers listening to a secret insiders’ Westminster conversation. And it can produce relationships that are too close.

As I have said, I am writing in a personal capacity because of my private and ministerial experience. Labour will not want to pre-empt the Leveson hearings, but here are a number of possible principles as a starter. The first principle is that the press should be free, but free only consistent with a clearer understanding about what is within and off limits in the pursuit of a story. Second, pursuing the public interest is not the same as publishing what the public are interested in. Take reality TV: just because it is possible to show something on TV does not prove that any means justify the ends. Third is the need for plurality and balance. Fourth is the recognition of the acceleration of different forms of media, and fifth is the need to provide forms of redress which are available to all, not only the rich and powerful.

We must recognise the commercial pressure journalists face in the newspaper industry against a backdrop of falling readership, the expansion of mainstream print journalism online, the growth of citizen-led journalism and the sheer need to feed the relentless 24-hour beast of news consumption. There is a risk that Leveson will end up solving yesterday’s problems without addressing the pace of change in the media. The falling budgets of print journalism mean lower investment in the best public-interest investigative journalism, of which Nick Davies [Guardian journalist responsible for much of that paper’s phone-hacking revelations] is a shining example.

Meanwhile, the very terms journalist and newspaper are becoming old-fashioned, since everyone has the capacity to be a journalist or publisher. Bloggers, NGOs, and hyper-local community websites all pose competition for traditional print media. If people can consume news free of charge, what is the incentive to pay for it? It is also important to distinguish between the alleged criminal activity in one news organisation and the conduct of journalism more generally. Even without the hacking scandal, the conduct of the press and media more generally was due for an overhaul, not least because of the accelerated weight of convergence, the risks to plurality and the exponential growth of citizen journalism.

Press regulation is not like any other regulation; it cuts right into the foundations of our democracy, based as it is on a free and independent press. While it is clear the PCC has presided over significant failings, it is not so obvious that extra laws would have prevented phone hacking from happening – because the necessary laws are already in place. As Lord Chief Justice Lord Judge has remarked, there would be no sense in rushing to prevent the occasions of unacceptable behaviour by elements of the press if that in turn were to accidentally diminish or dilute the ability and power of the press to reveal and highlight true public scandals or misconduct. We have a proud history of noisy, irreverent and often hugely illuminating journalism – the very worst outcome of the phone-hacking scandal would be if we muted this.

Readers’ editors for all

There is already a developing range of examples where society is provided with checks without compromising journalists’ ability to report on the issues which matter in the public interest. For example, a number of newspapers now employ internal readers’ editors or ombudsmen to ensure journalists are held to high ethical standards and that readers’ concerns are appropriately addressed. It would be a step in the right direction if all national newspapers were to have such positions. As internal roles they will remain free from political interference, but could help to maintain the important guidelines which the public expects journalists to adhere to.

The debate now should begin with three salient points. First, do we need new legislation to maintain the plurality that is the best protection of balance and impartiality? Second, there must be a clearer exposition of the tensions between the public interest and stories which are of interest to the public. And third, where does the accountability sit for journalists who break the rules? Media literacy has a big part to play in breaking through the too-often charmed world of politicians, public figures and journalists. People who can read the nature of the game and the relationships within it are more able to decide whether the story has merit or not. Enabling more of the public to play a role as informed participants, rather than as mere eavesdroppers, is the enduring challenge.

The Rt Hon Tessa Jowell is the Shadow Cabinet Minister for the Olympics and London, and Member of Parliament for Dulwich and West Norwood.