Regulating press freedom in the UK and the
constitutional response to the phone hacking
scandal
Introduction
(1) Outline of the Hackgate affair.
(2) Leveson Inquiry and its recommendations.
(3) The regulatory position of the print media before and since the
judicial inquiry.
(4) The constitutional role of Parliament and its committees plus the
contribution of the press in uncovering the original scandal.
A brief evaluation of the outcome is attempted with particular reference
to the state of play re press regulation.
Phone hacking scandal
A police inquiry initiated in 2005 revealed that private investigators had
been used repeatedly by the Sunday newspaper the News of the World to
hack mobile phones, including the phone of Prince William, other
celebrities and victims of serious crime, to obtain scandalous or salacious
stories.
In January 2007 the Royal Affairs editor of the News of the World Clive
Goodman and Glenn Mulcaire, a private investigator employed by the
paper, were convicted for conspiring to intercept communications. They
were sentenced to short terms of imprisonment.
By July 2009 it became apparent that senior staff at the News of the World
were aware of the use of illegally accessed messages from mobile phones
between 2003 and 2007. Moreover, there had been attempts to minimise
the responsibility of editors, chief executives and owners by a carefully
orchestrated cover up.
Parliament had been grossly misled in the evidence submitted to it
regarding the extent of these illegal practices. The relevant committees
using their watchdog function were intent on exposing a blatant disregard
by News International of their duty under the code.
Williams calls to Kate hacked
Victims family believe murder victim still
alive because of phone tap
Andy Coulson N of W editor later PM’s press
secretary imprisoned for authorising hacking
What did senior executives know?
MP Commissioner UKs senior policeman
resigns
Judicial Inquiry under LJ Leveson
Constitutional protection of free speech
From the perspective of the protection of rights under the uncodified UK
constitution:
‘[It] is … intrinsically important: [Free speech] is valued for its own sake.
But it is well recognised that it is also instrumentally important. It serves
a number of broad objectives.
First, it promotes self-fulfilment of individuals in society.
Secondly, quoting Holmes “the best test of truth is the power of thought
to get itself accepted in the competition of the market”.
Thirdly, freedom of expression is the lifeblood of democracy. The free
flow of information and ideas informs political debate.’ Sir John
Donaldson in AG v Guardian Newspapers (1987).
Resistance to prior restraint
The fourth pillar of freedom of speech in Britain is the principle that the
Government has no direct control over the press’ (Robertson and Nichol).
It is often said that the media is free to publish and be damned.
In practice, this means that an injunction will be needed by government, or
any other litigant, in order to prevent publication.
HRA 1998 incorporates ECHR rights including free speech.
No clear restrictions relating to the ownership of newspapers and print
media. Circulation imperative and political motives of proprietors calls into
question the virtuous role of the press in exposing wrongdoing?
Official Secrets Act and FOI set certain limits but what about when the
press go beyond the limits and abuse their position.
Scope of the Judicial Inquiry under LJ
Leveson
‘The culture, practices and ethics of the press; its
relationship with the police; the failure of the current system
of regulation; the contacts made, and discussions had,
between national newspapers and politicians; why previous
warnings about press conduct were not heeded; and the
issue of cross-media ownership’.
Set up for political reasons to divert attention away from
political controversy.
The Inquiry called before it all the main players, including
the PM, leading politicians, media bosses, journalists.
But was such an expensive inquiry justified given that much
of the evidence had already been exposed.
UK Press regulation
Strong reliance on unenforceable codes of practice signed up to be editors
of newspapers back in 1993.
“A balance is needed between the right of free speech and the right to
privacy. The Committee’s view is that at present that necessary balance
does not exist, and in this Report it recommends action to achieve it. The
Committee does not believe that this balance can or should be achieved by
legislation which imprisons the press in a cage of legal restraint, and for
that reason rejects those proposals in the recent report by Sir David
Calcutt which could create such a cage…”
PCC comprised of representatives nominated by press and no powers.
“The fundamental problem is that the PCC, despite having held itself out as
a regulator, and thereby raising expectations, is not actually a regulator at
all. In reality it is a complaints handling body.”
New self-regulation body was recommended by Leveson Inquiry
Independent of serving editors, government and business.
The nature of the abuse
Press complaints machinery was exposed as inadequate faced with the
scale of the wrong doing. Obvious shortcomings in the PCC as an
oversight body.
Critical questions were asked of the Metropolitan Police because there
had been inadequate criminal investigation of criminal wrongdoing.
Concentration of media ownership in very few hands recognised as a
controversial issue. Tendency by politicians to court the print media
places them in a special position.
Insidiousness in the way the directors and owners were associated in a
social circle with the PM, other senior politicians and the Metropolitan
Police Commissioner (forced to resign together with other senior
officers despite no proof of direct influence).
Parliament was to play key role in drawing attention to the scale of the
problem and it was through the departmental select committees.
Leveson Requirements of new regulatory
body
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The Chair and board members of the body should be independent of the press
and Government and should be appointed by an independent appointment
panel.
The membership of the new body should be open to all publishers on fair,
reasonable and non-discriminatory terms.
New body to formulate a revised code. Real harm caused to real people by
privacy invading expression without unduly affecting press partisan ship. But
how will the task of defining public interest be approached by a regulator?
The new system should be funded by the media industry by agreement with the
board of the new regulator.
The new regulator should have the power to direct appropriate corrections and
apologies and impose sanctions of up to 1 per cent of turnover with a maximum
of £1 million.
The new body should establish a whistle-blowing hotline for journalists who feel
they are being asked to do things which are contrary to the Code.
Newspapers required to publish compliance reports.
Independent Press Standards Organisation
(IPSO)
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Set up in September 2014 by newspaper owners to replace the Press
Complaints Commission and promote the highest professional
standards in journalism.
New body with new complaints procedure chaired by former senior
judge Sir Alan Moses.
Editors code of practice offers individuals protection from ‘intimidation,
harassment or persistent pursuit’.
Rulings published on website.
Does not seek to gain recognition under the Royal Charter which was
backed by Parliament under the Regulatory Reform Act 2013 and which
does not involve any prior constraint.
Incentives under the Crimes and Courts Act 2013 for publishers to sign
up but Guardian, Independent and Financial Times have boycotted
IPSO.
Fails to comply with Leveson criteria in crucial respects. Press
Regulation: Where are we now? House of Lords Select Committee on
Communication, March 2015.
Independent Monitor of the Press
(IMPRESS)
IMPRESS Project is building support for more robust independent selfregulation. Donors include authors, journalists and philanthropists such
as Michael Frayn, Terry Gilliam, David Hare, Ian McEwan, J.K. Rowling,
William Sieghart and Polly Toynbee. Independent of politicians and
owners. Impress may trigger government sanctions that newspapers have
so far tried to avoid.
Impress will encourage the highest ethical standards in journalism whilst
safeguarding the fundamental right to freedom of expression. Independent
self-regulation which complies with Leveson’s criteria.
Complaint handling function in relation to breaches of the standards code.
IMPRESS will provide a fair, quick and inquisitorial arbitration service for
civil legal claims.
Own initiative investigations by a specialist team where criminality is
suspected.
Whistleblowers hotline.
Impress is for journalists who value integrity and independence.
Parliamentary oversight: Departmental
select committees
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Introduced for the first time in 1979 to oversee executive departments
rather than undertake legislative scrutiny.
Set up at the beginning of each parliamentary session following a
general election.
Membership now selected by back bench MP not whips to make them
more independent but composition reflects party standings in House of
Commons.
Able to pursue investigations in a less partisan manner.
Elect their own chair who receives extra payment as chair.
Committee sets its own agenda: in this case the level of public concern
prompted the Culture, Media and Sport Committee and the Home
Affairs Committee to investigate and report. Hunting in packs.
Witnesses summoned and interrogated before the committee in
televised sessions. Public focus amplifies role.
Dialogue between the committee and government through responses to
reports.
Limited research back up compared to US counterparts.
Investigations and Reports
• The Culture Committee reported that: ‘Despite the professed
willingness of witnesses from News International to assist the
Committee, the company has continued to downplay the
involvement of its employees in phone-hacking by failing to release
to the Committee documents that would have helped to expose the
truth.’
• The Home Affairs Select Committee which shadows the Home
Office (responsible also for the Metropolitan Police) became
involved over the lack of explanation for the failure of the police to
investigate many serious breaches in the law related to hacking.
• Evidence given before the committee brought to public attention
close social contacts between News International personnel and
high ranking police officers and payments made to police officers to
gain access to investigations.
Conclusion
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Certain irony that exposure by a newspaper journalist triggered the
events leading to the exposure of the original scandal which assumed
prime billing as a national news item.
The capacity of a free press to dig deep and investigate the practices
within the press itself was essential. An overly protective privacy law
supported by an intrusive regulatory body might well have inhibited this
very process.
However, IPSO has too much in common with the PCC, has failed to
adopt Leveson approach and is not regarded with much confidence by
many respected media commentators.
At least the parliamentary and judicial mechanisms were able to
uncover a catalogue of abuses. The News of the Word was closed
down, a number of journalists and editors were successfully
prosecuted, senior police officers forced to resign but the big fish
directing multi-national media enterprises were able to escape the net.