The transcripts of the official inquiry into the culture, practices and ethics of the press. More…

  • DR DAMIAN TAMBINI (affirmed).

  • Your full name, please, Dr Tambini?

  • Thank you. You've kindly provided us with three documents. The first is a document dated 3 July 2012, which deals generally with freedom of the press issues. There's secondly a document which you have coauthored reforming the PCC, which -- I'm just checking the date. I think it's -- I'm not sure when it was written, but -- no, June 2012. We can see that. And thirdly, there's a document about plurality, which again is June of 2012. Are you content to put these three pieces of evidence forward as your formal evidence to this Inquiry?

  • Dr Tambini, as I've said to other people, it's clear that an enormous amount of intellectual effort has gone into these pieces of work. I'm very grateful for the assistance that you and your colleagues have provided the Inquiry.

  • First of all, about yourself, you work at the Department of Media and Communications within the LSE, but please give us a snapshot of your career and the expertise you bring to these issues.

  • Relevant to this Inquiry, I was director of the media policy project at the Institute for Public Policy Research, and later I directed the programme in comparative media law and policy at Oxford University and since 2006 I've been at the London School of Economics. I have served as a government adviser to the communications White Paper 2000, and as a member of the Communications Consumer Panel, which is a non-executive board within Ofcom, a statutory body.

  • I know you want to spend more time discussing your papers on the PCC and media plurality, but may we just look briefly at the first paper of 3 July 2012 dealing with freedom of the press issues. The evidence there overlaps to some considerable extent with the evidence we heard on Monday from our ethicists, but are there any points that you would particularly wish to bring out, either because you believe strongly in them or you feel that they haven't come out properly through the evidence we heard on Monday?

  • Well, my intention with submitting this short note was to respond to the questions that were posed because I thought they were very important questions. I think we've seen with the Inquiry as it's gone on the notion of the free press being used as a principle and a reference point in a way which is usually helpful but I would say not always extremely helpful, and we need to be careful in using the term.

    It may be helpful if I -- if you'll permit me, I'll tell a short story for an example of when it's used in an unhelpful way. As a policy adviser in the early 2000s, I, whilst at IPPR, commissioned quite a lot of research on privacy and the press. In collaboration with the pre-Ofcom regulators, I commissioned, for example, a large survey on the attitudes of the public to the public interest in the context of different forms of media intrusion, and I also published a book on the topic.

    Now, the reason this is relevant to the notion of the free press was because I was thinking about what, as a very low level policy wonk, you might do. There were clearly some issues there coming out of the research in terms of public concerns. At the time there was a Select Committee inquiry looking at similar issues, there was a controversy about whether a privacy law might be necessary and the impact of the Human Rights Act, and thinking about how to take things forward, having developed this research, I, as normal in these kind of circumstances, began to speak to people close to the government -- advisers, et cetera -- and one of the things which I found very memorable about this conversation was the phrase which met me from one of these relatively senior policy advisers: "We won't go there; that's freedom of the press."

    This alerted me to the fact that whilst, motherhood and apple pie, this is not a -- nobody would ever argue against the freedom of the press, you must really be a little bit concerned about when this term is being used in a way which is, if you like, a slogan to protect press interests rather than what I would hope is being meant in terms of a principled objection to forms of censorship.

    I can go into, if you would like, some description of some particular problems which I've outlined in the note with the term and how it is sometimes used.

  • We're not under any particular pressure of time, Dr Tambini --

  • Because what you have just said resonates with a number of concerns which we've tried to put to a number of witnesses, so carry on.

  • One of the -- I think it's quite helpful to see this in historical terms. Those -- the framers of the US constitution, and in particular the First Amendment to the US constitution, in 1789 were concerned with a world in which printing presses were the means of mass communication. They were concerned with establishing the principle that congress should make no law that would abridge freedom of speech or of the press.

    In 1950, when the European Convention on Human Rights was being drafted, the press aren't mentioned. We are concerned with freedom of expression.

    My concern is with the conflation, if you like, that occurs with the modernisation of this term "the free press", because whilst in the past it was a good proxy for the means of communication, through the 20th century the picture is a lot more complicated. It comes to mean the distinction between broadcasters, which can be regulated because of the justifications of spectrum scarcity, and the press, which should be somehow free from those obligations that apply to broadcasters.

    If we come forward to the current situation, the notion of a particular freedom which applies to a means of delivery rather than to a function like journalism or to speech in general, becomes, in my view, slightly more problematic, and it's at this point really that you have to raise more questions about whether the term is being used in a very useful way.

    So in particular, if you take the term "the press" in "the free press", sometimes it's taken to mean printing presses -- the means of reproducing content, messages -- sometimes it's taken to mean journalism, and sometimes it's taken to mean the media in general. If you like, this conflation, I would argue, helps those who want to use this as a general principle.

    So the Inquiry has been examining various forms of intervention which could be described as infringing press freedom, and I would like to be concerned with the underlying question of rights to freedom of expression -- are they being impacted? -- rather than with the slightly abstract concern of the principle of the free press being offended. So we need to be mindful of that sense in which the notion of the free press conflates those ideas.

  • Well, of course, part of the complexity of modern life is that there is a conflation within means of delivery. The scarcity of bandwidth which justifies restrictions on broadcasting is no longer tenable because of digital mechanisms for deploying material, and the difference between reaching a large audience through printed documentation has been utterly undermined by the development of the Internet, blogs, Facebook, Twitter, all that. Therefore what is, in your view, the underlying principle that should be respected when one talks about the freedom of the press -- if that means, and should that mean, the freedom of journalists to be able to investigate issues within the public interest going beyond those rules which might otherwise encompass others and otherwise to such extent in which they intend to inform and educate.

  • I sympathise quite deeply with the desire for simple principles, so I don't wish to disappoint.

  • But you're just about to.

  • My view -- and it's my personal view -- is that the search for very simple guiding principles about press freedom in relation to the privileges of journalists, for example, is not easily resolved because we are going through a very rapid process of change, very fundamental change in obviously the means of communication, and the longer debate about whether there are rights which apply to journalists as a profession, my view -- and I think it's something of a minority view -- is that, to a certain extent, there are. There are certain immunities and privileges which apply to journalists which don't apply to others.

    But, as I say, sorry to not be more helpful, being able to nail it down to a succinct principle, but --

  • I'm not talking about a single principle, necessarily. I'm simply seeking to define some lines, if I can, and if you say, "Well, actually that's simply not possible", that itself is significant, because one then has to find a way of drawing boundaries which respect individual rights of expression and recognise the value that the press -- by which I mean generically, not the printed press -- but that journalism brings to our society but falls short of permitting what some may say are behaviours that do not comport with the public interest and do not fit in with the public interest considerations.

  • Because the other fundamental point is that press freedom, like freedom of expression, is not absolute. It's qualified and it's relative and you have to balance with the rights of others and other rights. But the way I conceive of it is of, if you like, a social compact of rights and obligations. Journalists do have various forms of privilege and rights, both in law and more broadly, but they are conditional. They are there -- and historically you can see the development of those rights and privileges -- they are there because they serve a certain function in society. The implication, of course, individually or collectively, is that those rights, including the right to self-regulate, can be removed if they do not meet ethical standards or if they fail to serve that function.

  • I'm reminded that although the press is not expressly mentioned in Article 10, it is mentioned in Article 6 in the context of excluding the press from an Article 6-compliant trial. That can only be done in exceptional circumstances. But it may be that the modern jurisprudence on the convention will bring the press in to Article 10 in any event. Perhaps we needn't --

  • But not because they are the press or newspapers. Not because there's a fundamental distinction based on the medium of delivery.

  • But because in some sort of way they are exercising a qualified right to freedom of expression. But you would wish to emphasise the qualified nature of the right; even if the press come into the convention through Article 10, it doesn't give them any absolute position?

  • I would agree, and I would add -- because we've been discussing freedom of expression, which is, for many, a very delicate issue -- that I'm entirely committed to freedom of journalism and freedom of the media, and I'm simply entering a note, which is really to stress that use of the term "press freedom" in a way which is a defensive sectoral interest, really, rather than a genuinely principled stand is an enemy of freedom of expression and freedom of journalism.

  • Yes, it can't be used as a club to prevent anybody from entering through the door to question how you or they behave. Is that your point?

  • (Nods head) Which brings us back to the story I started with.

  • Thank you, Dr Tambini.

    May we look now on your co-authored paper on self-regulation, or rather regulation more generally. This approaches the topic from a number of angles, but one of those angles brings in to play European and international comparisons. No doubt there you've been assisted by one of your co-authors who may have majored on that topic.

  • The first chapter, "Press Councils in comparison", 01461. On the internal numbering of the paper, it's page 6. You point out there that the United Kingdom is in somewhat of a minority in the context of self-regulatory bodies, since in most other comparable systems, there are joint enterprises between journalists and media owners or publishers, yet in the United Kingdom, in common with Estonia and Denmark, the publishers are, at it were, sole entities within the self-regulatory system. Is that a fair summary?

  • That's right. I think it matters, when you think about self-regulation in practice, who is involved in setting up and designing the overall structure. I'm glad you mentioned the co-authors, Manuel Puppis and Sally Broughton. Manual's research, on which this is based -- it would be in German if we hadn't done this. He simply looks at press councils and analyses them according to a very simple framework, and finds that the UK system is really an outlier because of this basic structural feature.

    Successful press councils tend to involve representatives not only of owners/publishers but representatives of journalist associations and journalist unions. That's the normal model. Whereas in the UK, we see that the founding of the self-regulatory body was wholly led by publishers.

  • To what extent, in your international or pan-European comparisons, has there been, as it were, independent or lay representation in self-regulatory bodies?

  • Our tables are simplifications. All press self-regulatory bodies do involve some form of lay membership. The normal model in fact involves publishers, journalists or journalist associations and lay membership. They don't tend to be involved very early in the process, and you could make the argument that they tend to be bolted on rather late to add a bit of legitimacy. You saw in the case of the Press Complaints Commission gradually, over time, the number of lay members being increased and it's only relatively recently we have a lay majority on the council of the Press Complaints Commission.

  • Thank you. Your second table on page 7, our page 01462, looks at structural elements of self-regulatory bodies and here we're looking at the question of tiers. Can I ask you, please, to explain that for us?

  • We are analysing how the internal boards within the Press Complaints Commission -- press councils are structured, and in particular, looking at the relative role of these boards and the presence or absence of these boards as separate entities within the commissions. So, for example, in just to pick an example, Austria has a body of trustees, a council, an ombudsman and a complaints commission, whereas Denmark only has a main council and a separate complaints commission.

    This is relevant because there is quite a broad range of different tiers and levels within press councils, particularly in the light of a discussion which I know has been going on about whether it may be appropriate or useful to involve an ombudsman, for example, as a first call for complaints, and that's something that we recommend should be considered.

    What the table does is simply analyse -- just present for you the range of different structures. It doesn't go into a huge amount of detail on what's behind these tables, and they are, of necessity, simplifications.

  • You say that such two tier systems have proven to be successful. What's the evidence base for that?

  • Well, the evidence comes from two research projects which are based on interviews and comparison of codes, one which was conducted by Professor Manuel Puppis and published, as I mentioned, in German, I think 2010, and one which is a study which I'm happy to provide to the Inquiry published by myself, which is a three-year European Commission-funded study of self-regulation published in 2008.

    So the evidence comes from interviews from stakeholders and also analysis of codes and numbers of complaints and public awareness. The data sources are secondary, so they're slightly different in the cases of the different press councils, and the data you have there is from Manuel Puppis' research.

  • Thank you. The next table looks at the scope of ethics bodies for journalism. In most other jurisdictions, the ethical body is composite, in the sense that it covers the printed press, broadcasting and online. It's only in a few countries such as ours that it only covers the printed press, but there may be all sorts of historical reasons for that, which are maybe quite complicated to analyse.

    May we move on to the next point, level of state involvement in self-regulatory bodies. I think you mean here two differently related aspects. The first is the degree, if any, of statutory underpinning and secondly, whether there's a state levy or whether it's self-funding; is that correct?

  • Pardon me, carry on.

  • If I can expand, state involvement is another one of those areas where there are huge sensitivities, some of them principled, some of them based on self-interest. Some of the elements of proposals for reform -- in fact, I think probably most of them -- contain some form of incentive, either access to new forms of defences, which could be accessed by those titles that self-regulate and contribute to the self-regulatory body, for example in the case of the Hugh Tomlinson proposals -- and obviously these would require some sort of statutory basis. Another reform that could be necessary to reform the system, and which would bring it closer to a co-regulatory framework, is that the body itself should be established and recognised in statute.

    But the point we make here -- and a third element could be funding by the state. For example, if a journalist association was involved, many countries have that part of the funding shared by the state, if the journalist association doesn't have the resource to pay it.

    My view is that -- and the view of my co-authors is that all of these things can be made to work, and can be made to work in a way that doesn't of necessity conflict with freedom of expression, but the necessary safeguards have to be put into place. This is a solvable problem.

  • Thank you. Can you just explain for us, please, your pyramid of press self-regulation? It's on page 01464. Until complaints, I suppose, reach a certain point, they can be dealt with internally either by self-regulation or by statutorily underpinned regulation, but there may be a point when the ordinary law comes into play, either contemporaneously or separately? Is that the concept?

  • That is. There's are more fundamental related point. Part of this is about efficiencies. You do want a system which doesn't involve too many cases going through formal adjudication, and you want a system which is accessible to complainants, also those that can't fund huge costs, but you, at the same time, want a system which does establish some pressure for culture change, some pressure for a behaviour change. The consensus is that the Press Complaints Commission was a complaints-handling body but it didn't really establish those pressures for culture change.

    So whilst, lower down the pyramid, larger numbers of complaints will indeed be handled by press councils, ombudsmen, different forms of accountability mechanisms -- much larger numbers of complaints -- it's also essential that somehow in this system, mediation and settling of those complaints isn't something which is just simply under the radar, as I think did happen in the Press Complaints Commission, but it is brought somehow into a system where complaints are understood and addressed and monitored in ways which stand some chance of then impacting press behaviour and development of journalism ethics and practices.

    So whilst, lower down the pyramid, you do want alternative accountability mechanisms, you at the same time need to design a system which creates incentives to change.

  • Thank you. The next subheading is the make up of press councils.

  • Just before you go on, there's a sentence in bold where you say:

    "There is a role for the state in self-regulation of the press."

    Some might say that that's a contradiction in terms.

  • Any future publication will correct that. This is of course co-regulation, by definition.

  • Oh, it's a mistake. All right. I thought there was some profound ... all right.

  • The first point you make -- we're looking here at the number of council members -- is that you come to the conclusion that considerations of efficiency and cost effectiveness suggest the body dealing with complaints should be kept rather small. Can you explain why you're drawn to that conclusion?

  • We're drawn to that conclusion -- to a certain extent, it's a trivial, technical and slightly obvious point. In Germany and Luxembourg, more than 20 people serve on the council. That would strike -- that strikes us as excessive. It's also the case in Switzerland and the Netherlands, but there are, in those countries, particular reasons to do with federation and language groups and representation of different social groups which explain that. In the UK, we would see no reason to have such a large council on the co-regulatory journalism council.

  • But you do want to see an appropriate mix of public members, journalist members and editor members, so once we have three constituencies, it could be said we're looking at somewhere between 15 and 20, are we, as a sort of optimal number balancing the various component parts? Is that a reasonable conclusion?

  • That is a reasonable conclusion, but I wouldn't say -- certainly not higher than that, possibly slightly lower than that.

  • In terms of appointment, which is page 12, 01467, the position which obtains now is that control over appointment of members tends to rest with the founders. Presumably, though, a more desirable system would be a higher degree of independence in relation to the appointment process; is that reasonable?

  • Absolutely. And everything I've said really comes with the same general thrust, which is that the overall ownership and control of the Press Council should be more independent and more visibly independent from the owners and the publishers.

    I can say a little bit more in general terms about why that is and why we have to be mindful of it. Obviously, there are a range of approaches to appointment of Press Council members. There are a number of countries in which the state or the government does appoint some council members. I am not particularly drawn to that approach. In fact, I think I would go as far as to say I am personally against it.

  • Thank you. In terms of powers of the press councils, procedures or dealing with code violations, you make two points, really, on page 13, 01468. First, that it's important that press councils have the power to initiate cases. Could you explain that one for us?

  • Just to take the example of the Press Complaints Commission, the power to initiate complaints has really only extremely rarely been used. I believe it does exist, but the ability, for example, in relation to privacy violations or in relation, for example, to the McCanns, to act also when there are no complaints -- the Press Council seems to have been very reluctant to do that. But the -- as I said, the power is there. I think the power should stay there, and it would enable the -- particularly if the co-regulatory body was involved, an ombudsman, potentially on the Irish model, that body should have the power and use the power to start investigations of its own accord.

    There may be, for example, in relation to collective victims of misrepresentation in the press, who currently have a lot of difficulty with complaints -- there may be significant areas where the ombudsman would be able to improve awareness, improve journalistic practices and act as a kind of a feedback mechanism, and part of that would be that they would be able to initiate some complaints.

    It's not something I would see done very frequently, but the regulator in general needs to have more powers and more freedom of movement.

  • Isn't that part of a rather wider piece, because the PCC at the moment may, as you say, initiate a complaint of its own, but one of the complaints that's been made to the Inquiry has been that it frequently refuses to take up complaints unless there's an absolutely direct link between the story and the person who is advancing the complaint. So it won't take up a third-party complaint. Generic complaints by groups are, if not positively rejected, then discouraged on the basis that that might be thought to be interfering with the ability to be partisan, irrespective of accuracy.

  • Therefore it's been suggested -- and I'd be grateful for your view -- that actually the whole thrust, the ethos of the Press Complaints Commission, as it has existed, at least hitherto, has been to control down rather than to widen out the potential basis upon which they will look at what the press has been up to. Is that fair?

  • I think that's fair. I think it is, if you like, structural. So the safeguards and fire walls and internal structure of the body really needs to be looked at very carefully.

    If I might just take a couple of steps back and refer to something that Ed Richards said in his evidence a couple of days ago. He made a quite brilliant point, I thought, about really understanding the fundamental incentives which apply in self-regulation. So we shouldn't assume all self-regulatory bodies are similar, and he made the point that, for example, advertising self-regulation -- there's a very clear self-interest, if you like, an enlightened self-interest, on the part of the advertising industry to regulate itself, because it's necessary in general terms to maintain, for example, trust in advertising. So accuracy and various other code articles can be applied. So advertising self-regulation tends to work quite effectively.

    That's not the case, for example, in online gambling self-regulation, where it's my view that the industry does not have an interest in restricting its market by dealing, for example, with public policy issues of problem gambling.

    So comparing self-regulatory bodies is not really comparing like with like. You have to understand whether the incentives line up and whether that magic of enlightened self-interest on the part of the industry to regulate itself actually comes into play.

    I would take, in relation to the press, the logic just a step further and suggest that we should begin to think -- in relation, for example, to phone hacking or privacy violations more generally, begin to think about how the incentives line up for the industry, particularly in newspapers.

    Privacy violations provide a huge amount of resource. They provide front pages, which sell newspapers. No economist, as far as I know, has actually valued that, but if you have a self-regulatory body which is not -- in some senses, it might have the value of keeping statutory regulation at bay, but it may not have, at its core, the objectives of actually dealing with those kinds of public interest issues.

  • That might be the sole entire common interest of everybody. Keeping statutes away.

  • Is that a convenient moment to have a break?

  • Certainly. We'll have a few minutes.

  • (A short break)

  • In terms of sanctions -- it's not altogether clear on my copy because of the way it's been printed -- I think only one press council has the ability to fine; is that right, Dr Tambini?

  • But you recommend, bottom of the page, a combination of the obligation to publish -- that's the name and shame point --

  • -- and a Press Council that can initiate cases is the strongest model.

    In terms of your conclusions on the next page, 01469, you're contemplating a new council which should be jointly formed by owners and journalists and on which presumably there should be some public representation. I think we've covered that point.

    Whether it should regulate all news media, including broadcasting -- well, that's quite a big point, if I may say so, given the current status of Ofcom and the position of the BBC. If we pass over that one. But look more carefully at item 3:

    "There's a role for the state in self-regulation."

    I think, again, defining our terms, we're talking about co-regulation possibly, aren't we?

  • If I may just clarify in relation to regulating all news media, I would argue that for broadcasting there's a potential, possibly at a later date, to bring fairness and privacy complaints to this body, and for Internet services, I would argue an initial period in which this would be a voluntary system would probably be the way to go forward and also maybe a size threshold could apply in the event that there was any obligation to take place.

    But, sorry, the role of the state?

  • Once there is a state role in the system, inasmuch as it has some statutory underpinning, we're either in the realm of co-regulation or the realm of state regulation. It isn't, I think, self-regulation. Would you agree with that?

  • We have discussed that point and I agree.

  • What you contemplate is a series of incentives which will impel people to participate, so it's not a compulsory statutorily underpinned system but a voluntary one with some sharp incentives; is that how you see it?

  • Yes. There is -- because the incentives have been discussed quite a lot, I should say that particularly when you have financial incentives -- there may be a continuum. If the financial penalties for being outside are too great, it may be very close to an obligation to either join or simply carry too much liability risk. So you'd need to be mindful of that.

  • Yes. Can I be clear, item 5 --

  • When you say I need to be mindful of it, do you mean to say I should not go that far, or I should try to go that far?

  • I'm thinking of some experience in other countries where, for example, defamation, sometimes privacy claims, can be used to shut newspapers, if the liability costs are so high that in effect what you're proposing is a compulsory system. So it may be a question of calibrating those incentives, insofar as that's possible, to make clear that if you want there to be the option of staying outside it and running the risk, if that's what the intention is, then the incentives aren't such that there's simply not a choice.

  • But there will always be a choice, and one has to be very careful that ultimately one isn't seeking to differentiate the operation of the law.

  • But if one takes litigation costs merely as an example, why isn't it perfectly legitimate to say, "You can join this system and then have access to a cost-limited mechanism for the resolution of disputes which would be available to those who wish to complain about what you were doing. If you don't join the system, then you run the risk that the state will say to you: if you lose, well, you have to pay all the costs that actually somebody else had to incur because you didn't go into the system, and if you win, why should you get your costs, when if you'd been in the system, the person who is complaining about you could have ventilated their dispute without incurring great expense themselves?" What's wrong with that?

  • Nothing. You have clarified that in my mind. Thank you.

  • Well, it's only an idea. I've not decided anything yet.

  • Item 5, the body deciding upon complaints. This is in your two tier year system, on my understanding. Within that system, there will be a dedicated complaints body; is that right? And you're making recommendations as to how it should be comprised?

  • Yes. Just to enter a caveat, I was reminded during the break by my co-author that the earlier point about numbers of people serving on councils should be clarified, because much smaller numbers serve on the actual complaints-handling body in many cases. So it might be a lower number. But yes, you're correct in that clarification of point 5.

  • Thank you. Then the proactive more outspoken point -- we have probably covered that already. It's taking cases on your own initiative and third-party complaints.

    May we move on now to your other paper, which is on plurality and media power. I think we can move straight to, on the internal numbering, page 6, which is our page 01480. It's under tab 82. The basic philosophy here: "Why intervene to protect media pluralism?" Can you tell us about that?

  • I think it would be useful if I linked this to the discussion of -- the remit of this Inquiry and what this Inquiry's asked to do, if you'll permit me.

  • This time you're dealing with two different collaborators?

  • There are many -- watching the Inquiry unfold, I've had the distinct impression that media pluralism is treated as an add-on, and at the centre of the Inquiry is a reform of self-regulation, whereas I and a number of colleagues see it the other way around, not only reading the terms of reference of the Inquiry but looking at statements made by the Prime Minister.

    For example, last summer, the importance of market structure in explaining the situation in which we find ourselves cannot, in my view, be overestimated. I'll just quote David Cameron from last July:

    "Because party leaders were so keen to win the support of newspapers, we turned a blind eye to the need to sort this issue, to get on top of the bad practices, to change the way our newspapers are regulated."

    Now, you can look at this statement in a variety of ways but I would suggest focusing on the first part:

    "Because party leaders were so keen to win the support of newspapers ..."

    It relates to my earlier point in relation to public policy in terms of no-go areas of public policy.

    Just to encapsulate the importance of making strong recommendations to deal with the pluralism issue, I would just simply observe: if I was advising an incoming government, whether that was the New Labour government or the Cameron government, I would advise them not to alienate significant media interests. The reason for that is market structure, concentration of media ownership, which I think we've heard a lot of evidence has led to, in the past 20 years -- is it too strong to say a disaster, really, in terms of democratic legitimacy in this country?

    So that is not a new problem. Going back through successive royal commissions of the press, this issue of media concentration has been discussed, it's been discussed in countries all over Europe and there are policy frameworks in place to deal with it, and in the paper we discuss some of those.

    But if I can just note a couple of things -- draw to the attention of the Inquiry a couple of other things. A judgment of the Grand Chamber of the European Court of Human Rights just last month gave a judgment which affirmed the positive obligation of states to protect media pluralism. That's the Trenta Italia Secta v Italy(sic), and this builds on their previous decision from 2009.

    So there is a positive obligation on states to protect media plurality. I think what distinguishes this, just to wrap up --

  • Hang on, what was that case about and what was the judgment in it?

  • The case was about a broadcaster that was awarded a licence by the regulator in, I think, 2000 in Italy, but then was not actually awarded the frequencies to broadcast. This was viewed within Article 10 of the European Convention on Human Rights as an infringement not only of freedom of expression but of this positive obligation to promote a plurality of points of view and broadcasters within an audiovisual system.

  • So if I can just draw this point together. Plurality obligations, which include structural limits on media ownership and also internal pluralism, as you've been discussing, are fundamental. I think that's what sets this Inquiry out against previous, for example, commissions on the press. Previous royal commissions on the press were dealing with a hypothetical problem that might emerge. However, this Inquiry is dealing with -- and it's acknowledged in the quote that I described from the Prime Minister -- a problem that has clearly happened. There has been a long-term systematic failure to protect the public interest in relation to particular media interests. That is a distinction and that is why I would argue the Inquiry should be focusing more than passing attention on media pluralism issues. I'm sure it will.

  • Yes. Within the limitations, if any, imposed by the terms of reference. Of course, it's for the Inquiry to understand what those are and the Inquiry is quite capable of doing that. Can I ask you, please, to develop the specific technical points which you set out in your statement? The first is the measurement issue, which is section 2, page 8, 01482.

    You probably heard the debate yesterday as to whether we should be focusing on news and current affairs, perhaps to the exclusion of all else, the Ofcom view -- I don't think is quite that, but it's the primary consideration -- or whether we should be, as a matter of principle, going wider to all forms of media content. You, I understand, subscribe to the second school rather than the first; is that correct?

  • Yes, as a suggestion, but we acknowledge Ofcom's point that it is a trade-off, really, between what's practical just in terms of measurement and what is desirable in terms of a full assessment. We think it is possible to have a full assessment, although I should -- I don't think it's mentioned in paper -- say that what you might tolerate is slightly higher limits when it comes to more general media genres. 20 per cent rather than 15 per cent, for example.

  • Can you explain for us, please, if you look at the bold sentence -- or it's rather a clause, the middle of page 9, 01483 -- it says:

    "At minimum, separate considerations should be given to affirm its position in the market for news and current affairs as well as across all genres."

    What do you mean by that, Dr Tambini?

  • I think it's relevant to refer also to the recent Ofcom report, which sets out some methods, and I would argue without specifying really whether we're speaking about triggers for a review or absolute caps or some form of monitoring and reporting as part of a continuous review process. So we need to specify what these measures are for. In this context, we're speaking about caps, and within that, the periodic review which would assess whether those limits on media ownership are being approached and so forth.

    But within those reviews, I think it would be possible to measure both of those things and provide advice and data on both of those things --

  • Sorry, "those things" are first the firm's position in the market for news and current affairs, secondly -- I'm not quite sure what "secondly" is.

  • Secondly is the position in the market across all genres.

  • Can you explain that for us? First of all, what precisely do you mean by that, and how is this going to work?

  • What we do in this paper is not offer you a fully complete, all bells and whistles system for measuring and limiting media plurality. We offer some advice and comments on proposals of others.

  • But within a system of limits on media ownership, we're simply proposing that -- we make a number of points about what the best methodologies are, comparing the methods of -- which are used in regulators in other countries, and we find that it's possible, for example, to make a -- we make the claim that audience metrics, which are based on time that audiences spend with different media and different media companies, is probably the best metric.

    The point I'm making here is that we should use those metrics to measure those things separately and they may be considered by a regulator separately in order to form a judgment about whether limits have been breached.

  • Okay. Now, relevant firms -- you'd wish to include online providers of media content. All of them or some of them?

  • The method that we're suggesting draws on the Ofcom share of references approach. So to a certain extent, we would -- which is basically a survey, which asks media users what of a list of services they could -- they recall having used recently. Now, that obviously begs the question: what is on that list? And you could have a list which is based on a size threshold, on existing measures of audience, audience rankings. There are a number of data sources available of the most visited websites, for example.

    So just in practical terms, I would say those most visited online sources and aggregators, search engines, which we know are the most used and most visited should be included on that list and that would prompt people to provide the data in the survey.

  • Wholesale or retail. That's page 10. You favour looking at wholesale levels because it's more comprehensive. I think that one is probably self-explanatory, but relevant indicators is something I invite you, please, to explain to us. The table, unfortunately, hasn't come out very clearly in my copy. Do you see table 1 on page 01485? Just briefly explain to us what the common indicators are, first of all.

  • Okay. What this table does is set out a description of different methodologies which are used in Italy, Belgium, France, the UK -- and there are two measures for the UK. And what the table is trying to explain is my fundamental observation about -- particularly the UK framework is that it's subject to an unacceptable level of delays and challenge. One of the reasons for this -- not the only reason -- is the measures which are used.

    There has been a long debate about what are the most appropriate ways of measuring media plurality, and I can say a bit more about that, but the -- for example, in Italy, revenue shares are used. This was the proposal you discussed yesterday in relation to Enders Analysis' proposal of a cap on revenue shares. That's the system which is used in Italy, which indicates a proportion of revenues within a specific media market.

    In Germany -- and Germany's an interesting case, which might warrant looking at a bit more closely -- they have a different policy objective in mind. I think one of the more fundamental reasons that this policy area has been subject to so much challenge and difficulty is because of the lack of clear policy objectives, and in Germany the policy objective is not simply plurality of media sources; it is what they call "Meinungsmacht", power over opinion formation. And they measure, in relation to -- in particular, to television, exposure -- standard audience indicators for audience shares when they're taking into account -- when they're trying to work out if a television merger -- a merger involving a television owner breaches their limits.

    It's interesting just to build on this a little bit to observe that -- for me, the fundamental issue is this issue of clarity of policy objectives. In the UK, we have a plurality system which -- and we've analysed this in a longer paper -- has the objective of promoting diversity, a different range of view points -- and I'm thinking of the Enterprise Act, section 58 description of what must be taken into account in the event of a merger. But it also has the objective, for example, of guaranteeing freedom of expression, accuracy, and a sufficient plurality of persons, which could be a proxy for opinion-forming power.

    This contrasts in turn with the US approach, which is much more just concerned with diversity. I think in the UK, we have particular problems because we are asking too much of the merger tests and we're not asking them very clear things, and those things that we're asking the merger tests and the merger framework to achieve are sometimes in conflict with one another. This is going beyond the point about measures.

    You can imagine a market, for example, where a decline in the number of providers would not result in a reduction of diversity -- and this has been empirically proven -- whereas usually a decline in the number of providers almost always provides a reduction in opinion-forming power.

    So the fundamental problem, as well as the issue of measures -- and as I've said, the measure we favour is similar to the Ofcom share of references. We think audience measures are better, but the more fundamental issue is clear policy objectives and distinguishing between the objective of diversity of media content and the number of voices, which is, I think, a particular problem. I think this might be something that the Inquiry can help clarify.

  • But can I clarify where you're coming from? If you look at the relevant sections in the Enterprise Act, 58(2)A and 58(2)C, which you've helpfully set out at page 14, 01488, are you saying that we should amend the statute so as to remove the references to the need for accurate presentation of news and free expression of opinion so we're just left with 58(2)B and 58(2)C?

  • Well, in a merger context, we're not saying that, and I think we're reasonably clear that we're actually saying that these objectives should remain. I think it's an issue for guidance, for clearly identifying measures, criteria and metrics which enable each of those different objectives to be more accurately measured and taken into account, and I'm not sure I have an answer. I may be doing nothing more than pointing out in a problem in this particular case where you have conflicting objectives between diversity and opinion formation --

  • I'm not sure whether they're conflicting, Dr Tambini. Where is the tension between what we see in section 58(2)A and section 58(2)B, for example? They're entirely harmonious objectives, aren't they?

  • There may be cases where -- if you think of US newspaper markets, which tend to be local or regional monopolies -- it's an internal plurality point, really. Because they are monopolies, they have to represent a wider number of views. Secondly, there's an economic theory called Hotelling's effect, not because it has anything to do with hotels but because the economist who advanced this idea was called Hotelling, which suggests that in certain sizes of market -- it may be five or six players -- you have a tendency to cluster around the centre of the market. This is usually illustrated with the idea of two ice cream salesmen on a beach. They end up back-to-back selling vanilla, whereas if you have one, they might have a wider range of flavours and they might walk around the beach.

    But there are good economic reasons why the five major news networks in the US were all covering the OJ Simpson trial continuously, which is not diversity, and you do not always solve that by having more. You can have an increase in diversity having less.

    The same is not true in relation to the sufficient plurality of persons, which I would argue is a proxy for this opinion-forming power. I can provide a reference to our longer paper, where we develop that point, and there are some references there.

  • I still don't quite follow it. The persons point is only relevant to cross-media mergers, section 58(2)C. Parliament has decided when we're looking at newspaper mergers we're not interested in number of persons; we're interested in sufficient plurality of views, which I think precisely addresses the concern you're making. That's why Parliament has expressed itself in that way.

    But in any event, my question was: what is the conflict between the sufficient plurality of views criterion and the accurate presentation of news and free expression of opinion criteria? There isn't any, is there?

  • Well, there may be -- it comes to a point, also, of market exit, and I think that's part of the intention of these clauses, is when a regulator faces a choice between allowing a news outlet to close and allowing them to merge. In the former case, you may have problems in terms of --

  • Sorry, closing newspapers isn't within this regime at all, is it? Only to have a merger.

  • Well, the public interest considerations, if you are to permit the merger, involve a consideration of whether -- and I think we have seen this in relation to, for example, the Sunday Times -- when a newspaper claims that it is in financial difficulty and may close, therefore should be permitted to merge even though it breaches the limits. If it's permitted to close, that may have detrimental effects for free expression of opinion.

  • The merger was allowed to take place because otherwise it would have closed, and that was why it didn't have to go to the Competition Commission. You'll remember the provisions of the Fair Trading Act 1973, section 58, I think.

  • The big argument in relation to the Sunday Times was whether it actually fell within that category at all. That was the argument.

  • Yes. Okay.

    Can we look at your policy recommendations, please, Dr Tambini?

  • Before we do -- and I'm very keen to do so -- I'd just like to focus a little bit on what you said at the very beginning of this analysis, which was to suggest that the terms of reference really should be centred on plurality rather than regulation, and that it may be that the terms of reference had been misunderstood.

    I don't want to take too legalistic a view about the terms of reference -- I'm conscious that that's a criticism that's been made of earlier inquiries -- but on the other hand I have to be rather careful not to exceed what I am required to do. The Inquiry is into the culture, practices and ethics of the press. That's part 1, paragraph one. It identifies four particular problems: contacts and relationships between newspapers and politicians, contacts and relationships between press and the police, the extent to which the current policy and regulatory framework has failed, including in relation to data protection, and the extent to which it has failed to act on previous warnings.

    So that's the context and within culture, practice and ethics, of course, is the relationship between the at public. You can talk about regulatory framework and the word "including", which I certainly recognise does not exclude issues of plurality, but let's go on and look at what I'm required to make recommendations about:

    "For a new and more effective policy and regulatory regime, which supports, amongst other things, the plurality of the media."

    So that's all to do with a regime. So that's a structure which best supports media plurality. Do you say that that allows me to descend into the detailed at a particular level -- that's a percentage, whatever metric you want to take up -- as to what newspaper organisations should be entitled to own in this country? Or am I there to advise upon the structure that should be in place so that an appropriate body can make a decision, because I have to pick, in (b), for "how future concerns about ... regulation and cross-media ownership should be dealt about with by all the relevant authorities", including in part, government, et cetera.

  • Mm-hm. Obviously it's for you, and I welcome the chance to --

  • We'll agree about that, but I'm asking for your views.

  • My fundamental question is: why is it in there? Why is there the reference to the plurality of the media in these terms of reference? I don't think it would be convincing to argue that it is in there in case the self-regulatory structure that you suggest somehow impacts on plurality of the media. I would argue that it is in there because of the reasons I mentioned: not the ethical failures that we've heard so much about this year in themselves, in terms of phone hacking, et cetera, but because of the more fundamental problem, which was the cover-up, what is viewed as a failure by various institutions and politicians to deal with this. It is that which is explained by the problem of a concentrated press.

    So, just to repeat the point, this Inquiry has been asked to deal with these issues in the light of what has clearly been a failure and the admission of a failure and the admission of a need to kowtow to press interests on the part of politicians. For me, that's my interpretation of these terms of reference.

  • I have to be rather careful because I happened to be present while these terms of reference were written, so I know how they developed, and I'm very keen merely to construe them as they now exist, but I would like to go back to my question. I recognise the point you make. It's there because of the concern that too much attention was paid to very powerful press interests. That's the concern and that's what we're looking at, and one would have to consider a system which allowed the state to find a way of moderating that influence so that it didn't run counter to the public interest. I understand that. But my question was whether you say that goes further and requires me to say: "I don't think any press interests should be allowed to own more than 10, 15, 20, 25 per cent", however you want to define it. Because that, it seems to me, is the thrust of what you're saying here.

  • Where we are in the policy cycle is that it's presumably for you to recommend and for Parliament to --

  • Oh, I agree about that, yes.

  • So my view would that be recommending indicative percentages is where the Inquiry should be. There is a further difficulty, as I'm sure you're aware, which is the nature of the current interplay between the government, Ofcom and the provision of advice. The advice which was provided to this Inquiry by Ofcom is not advice which designs a new system according to any particular criterion. That is because Ofcom regards itself as a non-policy-making body with very little discretion; it is simply answering the narrow questions which Ofcom set for it.

    So one of the things which it may be possible to do in terms of that provision of advice is ask Ofcom more specifically, and with a clearer set of policy principles in mind, for some more specific advice.

  • Now, that might be true, and I might recommend that that should be done and that might indeed produce a number, if that's the way forward. But that's very different from me seeking to produce a number, because what concerned me -- and it's that point that I was taking in the very large quotation that you include on the second page of this paper on 13 June 2012. That may concern me in having to get to grips with measurement mechanisms and all sorts of competition expertise, which, in the confines of the timeframe and the skill set that is engaged in the Inquiry, may not be the best use of its time -- I put it no higher than that -- which is why I asked the question that I asked you.

  • I come back to my answer, which -- again, which is that it may be the best use of Ofcom's time, but Ofcom -- the problem of what Ofcom is being asked to do is a real one. It's coming from the government but the Inquiry has a separate view on what the problem to be fixed is, and the Inquiry has been asked to come up with some solutions, which is why -- I think there are two separate processes here. One is that the government is asking for advice from Ofcom, but if the Inquiry has a different view on what Ofcom should be suggesting and maybe wants to request advice from Ofcom more broadly on what the policy framework might look like, I think that's a feasible one.

  • I think I have asked Ofcom rather more broadly. I think I asked a question of them yesterday --

  • But Ofcom needs to be given clearer direction in terms of what the principles on the objectives are.

  • And it may be that I ought to identify principles and objectives, but given that all this is recommendation, as you identify the policy cycle accurately to be, I'm just not sure whether you're not suggesting that I should be jumping two stages ahead of myself and making some assumptions about what Ofcom would say is technically feasible and technically well-balanced in an area where everybody agrees there is no clear metric, there's no magic bullet that solves any of these issues. It requires a number of competing interests to be taken into account which I might not be the best suited to take into account.

    So question whether I have to leave a rather greater flexibility to push the decision-making along without being definitive or dogmatic. I'm not trying to withdraw from a debate that I ought to be having or making a decision which I ought to make, provided I am the best person to make that decision, because one thing I assure you of: any decision I make outwith my expertise is going to be subject to rigorous challenge by anybody affected by it. Actually, decisions that might be said to be within my expertise are likely to be the subject of rigorous challenge by anybody who disagrees with them.

    I'm happy to take on what I have to take on, but I'm keen to hear your view on my reasons for caution, because I don't want the LSE to be producing a paper headed "A lost opportunity!" Maybe it will.

  • I think the LSE is the least of your worries.

  • I might agree with that, too.

  • I do completely sympathise and understand where the Inquiry finds itself on this issue, but there is an incommensurability at the centre of this, which is: yes, there are questions of where the technical expertise lies and whether it lies within the scope of this Inquiry and the time it has. I completely appreciate that. But I would also suggest that there is a question here about whether we can sustain the claim that policy making in this area has been demonstrated to be subject to endemic conflict of interest, if politicians have been compromised in relation to individual merger decisions and potentially also compromised in relation to development of policy frameworks in this area.

    So it's a simple point, really, which is whether it is logically consistent to find that politicians are compromised, subject to these conflicts of interest, and at the same time not specify clearly to them some standards and objectives and simply to kick the ball back to them with a very wide discretion.

    I think that if -- I think there's certainly been evidence to suggest that there is this problem with politicians developing policy in this area and anything the Inquiry can do to help them and to narrow the options would be welcome.

    There is a potential other solution, which would be that an organisation, a commission, a civil society involving a commission specifically on media ownership rules to develop more policy in a transparent way over a reasonable period of time and to feed into the Communications Act process could be something that the Inquiry could recommend. You might take the view that that is risky and looks even more like long grass. I'd have to leave that to you. It could be something which is recommended.

    I completely understand the point that plucking figures from the air is not something that the Inquiry feels able to do.

  • Yes. Well, the point was slightly wider. It's whether actually plucking figures from the air was something that the terms of reference required me to do. Anyway, we've debated it.

  • In terms of structures, though, Dr Tambini, you are recommending that these decisions are taken away from ministers and conferred instead to an independent regulatory body. That's something which is squarely within the terms of reference, and the reason for that, I think, is fairly apparent from what you've just told us.

  • The model there is Germany, the KEK, which is a specific body which just deals with media concentration and merger decisions in the media sector and has been seen to be relatively successful. It is an expert commission. Members of the Commission have security of tenure, they have a limited secretariat, and I think that model is worthy of examining.

    I know there's a range of opinion on whether ministers should remain involved in individual decisions on mergers. My view and the view of my co-authors is that they should not; they should be removed.

  • Their contrary argument is that this is a question in respect of which they have to be held accountable.

  • It also relates to -- it's difficult to take different parts of this structure and analyse them individually. It depends. If you have a system of -- with clear, fixed limits and there's less discretion for this Commission, the accountability problem arguably goes away, whereas if you have -- for example, the co-ordinating committee for media reform is suggesting a very interesting model, which is a system of triggers and thresholds. So when you go above the 15 per cent trigger, in effect there is a menu of undertakings, and if you agree to those undertakings, that, in a sense, is a licence for bigness, that public interest obligations are applied to you.

    In that kind of system, you may want some kind of accountability, but even in that kind of system I wouldn't want -- I think we've seen quite dramatically the discretion exercised by ministers in merger decisions and where that gets us. I think that they should be removed from these decisions entirely.

  • Thank you, Dr Tambini. Those are all the questions I have for you.

  • I repeat my thanks, Dr Tambini. There's obviously, as I say, been an enormous amount of work done in these areas and it only underlines the complexity of the issues.

  • The next witness, please, is Professor Barnett.