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

  • PROFESSOR STEVEN BARNETT (recalled).

  • Professor Barnett, you also have given evidence before. Thank you very much indeed.

  • Thank you. You're a professor at the University of Westminster in -- I'm just trying to remind myself. Professor of communications. I think you gave evidence on 7 December; is that right?

  • Your paper, which starts at page 01560 -- it's tab 93 -- covers two important but related issues. The first is press regulation and secondly combating media concentration.

    We heard from Dr Tambini the importance of the second issue and how it perhaps bears on the first. Standing back from these questions, how much emphasis do you place on the second, and to what extent do you feel it's responsible for the problem that we've found ourselves in with the culture, practices and ethics of the press?

  • And also, by all means, take advantage of the opportunity to comment on the exchange that you've just heard to such extent as you feel it necessary to do.

  • Thank you. I would like to take that opportunity.

    In answer to the question on the sort of chicken and egg question, as I tried to make clear in my evidence to Module 3, which I've tried to compress for the second part of Module 4, I think the concentration of ownership issue has been fundamental over the last 30 years in producing the kinds of problems and issues that have emerged over the last year. I deliberately go back 30 years and I gave the timelines I say in my Module 3 evidence.

    There's one sentence from the last paragraph of that Module 3 evidence which I'd just like to repeat, because I think it answers your question, which is:

    "The danger to democracy of an overly concentrated media is not simply in closing down the number of potential voices but in the undemocratic exercise of corporate power, which, if unchecked, can distort the democratic process by wielding too much influence over elected governments."

    So for me the first issue is the wielding of undemocratic power, corporate power, by organisations to whom governments have been in thrall, and one organisation in particular, which is News Corporation. I also outlined in my Module 3 evidence my own involvement, during the 1980s and early 1990s, in the Labour Party, where I saw at first hand how an opposition that was desperate to get back into power was falling over itself to try and find a way of accommodating what they perceived to be the most important route to power. And an awful lot of what has happened over the last year, I think, falls into that category of unaccountable corporate power.

    So that's a long answer to your question of which comes first. I'm not suggesting that had we had the existing structures of press self-regulation that would have been sufficient because dealing with the ownership issue would have solved everything, but I do think that they are coming at the issue from two different approaches and the ownership approach is as important, if not more important, than the bottom up. That's the top down approach. The press regulation -- the mechanics of press regulation, if you like, is the bottom up approach, but I would absolutely want to emphasise the importance of understanding where ownership fits into where we've got to today.

    Which brings me to the exchange that you had with Damian. I do not believe it is necessary at all to get into the nitty-gritty of numbers, caps, percentages, how many newspapers there ought to be, how many media organisations there ought to be. I absolutely think -- and I think this fits with the Inquiry's remit as it's laid down. Notions of plurality, notions of cross ownership are absolutely within the remit and I think it's perfectly okay, I would have thought, to be able to lay down high level principles, high level policy principles, and say: "This is what we want in a democracy. In a healthy, vibrant, dynamic democracy, this is the way Parliament ought to be taking this. These are the principles [I've laid out four or five which hopefully we can go into in a little bit more detail in terms of plurality] but it is up to you, Parliament, and you, the regulator, to decide precisely how you get to that position."

    So I don't believe personally that the Inquiry needs to go beyond the kind of high level statements that we've seen in, for example, the 2001 paper on media ownership under the Labour government or the 1995 Green Paper on media ownership from the then Conservative government. They're very good statements of high level principle, and for me, that will suffice.

  • The problem that Dr Tambini might suggest is that that's called the long grass.

  • Well, if Parliament is so frightened of media ownership that it wants to kick it into the long grass, it will do that anyway. I don't believe that it's going to be persuaded by more detail rather than less detail. If anything, quite the opposite.

    I do believe that this is potentially, for all sorts of reasons, a transformative moment in British public life.

  • I wish people would stop saying that, Professor.

  • But -- and it's a big "but" -- I mean, there are good political reasons for saying that, because it's a Coalition government, because, if you like, the big beasts are clearly, at the moment, lying low, but also because -- well, in the sense, there is less of a sense of press power at the moment than there has been for many, many years. Politicians feel that. Politicians feel that. And I think there is a greater sense now that it is possible for Parliament to legislate in the public interest without fear of a press backlash. I'm saying it's better than it was, not that it is absolute.

  • Yes. You have to deal with the argument that it was always thus. You went back 30 years. You could have gone back 60 years. You could go back to the great media barons of the early part of the 20th century.

  • That is absolutely right, and in fact, in many ways they were more influential in terms of overall government policies, on foreign affairs and domestic issues. I think that's right. Ironically, they were probably less influential in terms of media policy. But that's a historical question, which is debatable.

  • I have enough probably wouldn't solving that.

  • May we, Professor Barnett, identify the high level principles? We're going to take your evidence out of order, if you don't mind, taking the leap that you provided us, started with plurality matters. Do we see those in paragraph 126 your statement, our page 01563, where you focus on six key changes to the current regime?

  • Well, the high level principle -- that's probably too grand a title for it. Paragraph 11?

  • All I say essentially is: why does there need to be an intervention in terms of plurality? And the argument is: it goes beyond -- and I think this is quite important -- the notion of a multiplicity of voices. It's not just about dissent or competing voices. There are wider cultural issues involved in definitions of plurality.

    I've outlined those in paragraph 11, and I think it's important to remember -- again, going back to the notion of corporate power, it's not just about the number of -- the diversity of voices and the number of voices; it's also about the way in which powerful corporations will exploit their media outlets in cross promotion, and will use their power potentially to pressurise regulators to do the kinds of things they want to do.

    The example that's often given -- I've heard estimates that last year alone BSkyB sent £1 million in legal fees in trying to rebut some of the regulatory enquiries that Ofcom were bringing against them, and that is one example of how corporate power -- unaccountable corporate power can be used to generate even greater magnitude, even greater power.

  • This isn't just a press problem.

  • It's absolutely not. No, no, no, no. In fact, I would say on the contrary. I think if we're talking about plurality -- I'm not even making this a News Corp issue. The issue of BSkyB within the broadcasting market is huge. £6.6 billion was its revenue last year. That is almost more than the whole of the BBC, ITV, Channel 4 and Channel 5 put together, and within the next couple of years, projections are that it will be more. That is an awful lot. This is without the fact that it's 39 per cent owned by News Corp, with their control of the national newspaper circulation. That is the kind of magnitude that I do not believe would be permitted in the United States and probably not in most other European countries.

    So you're absolutely right; it is not a press issue. It is a plurality issue, and one of the problems that Ofcom had -- in fact, the government had -- in deciding this public interest test, in the attempted takeover of News Corp and Sky, was in trying to find a way of saying: "We can't stop this on competition grounds because Brussels has already okayed it. We can only look at it on plurality grounds." And therefore Sky News became the bone of contention, and actually, for all sorts of reasons, Sky News, within that organisation, is quite small and is probably the best thing to have emerged out of BSkyB anyway.

    Sorry, that's a slight divergence, but I just wanted to emphasise the importance of saying plurality certainly goes beyond newspapers.

    Shall I come back to your paragraph 12?

  • No. Can we stay on paragraph 11. I just want to understand the separate parts of it. The reference to embracing the wider cultural environments; can we be clear what you mean by that?

  • I think it's very important to think about -- where do ideas -- we're not just talking about political issues or political argument. It's the notion of ideas. How do ideas circulate? Where do they come from? Very often, particularly given the power of television, which is still very strong in this country, they come from powerful drama, they come from powerful situation comedies, they come from political satire. Those in turn will often reflect the corporate entity where they came from.

    Again, in my Module 3 evidence, I talked about the seminar a few years ago where someone who had done a lot of work for Disney talked about the Disney values. The way in which you pitch to Disney is very much contingent on what you know Disney is expecting, which is around family values and something that's sort of nice and cuddly, whereas -- and again, in my Module 3 evidence I talked about when Rupert Murdoch started the Fox network -- not Fox News, but the Fox network in America -- he introduced a couple of programmes that were significantly more graphic and more violent than American television watchers had been used to before, and one of his biographers, William Shawcross, said in many ways he was doing for American television what the Sun had done for British newspaper readers in the UK. That, again, is an example -- one was a current affairs programme, one was a reality type programme -- of programmes which emanated from a particular corporate ethic or philosophy.

    So I do think it's important that we bear in mind the -- whether it's the editorial content of newspapers where news stories come from, whether it's the commissioning strategies in drama or comedy, that ultimately many of these things will come from a kind of a corporate ethic.

  • Are you proposing then an amendment to the statute which will not just look at plurality of views, which is the test in the context of newspaper mergers -- is there sufficient plurality of views? -- but we would also be considering much sort of softer concepts which relate to the wider cultural environment that you are discussing here? Is that the way you envisage it?

  • Well, what I envisage is sweeping away the Enterprise Act, that provision, sweeping away that provision of the Communications Act, because, as I've explained here, they were last-minute fixes.

    I think it's interesting that we get into quite -- for obvious reasons, quite legalistic discussion about the wording of these statutes which were, with all due respect to the Parliamentarians at the time, actually drafted very, very quickly, in a matter of a few days, in order to ensure that the Coms Act got through Parliament. That's the history of it. And yet here we are, ten years later, going through it word by word saying, "Which bit shall we keep? Which bit shall we ..."

    The answer is -- and here, again, we come to my view of where the Inquiry might best go on plurality, is to say: this is not fit for purpose any more. We don't want a last-minute amendment to one Act based on another Act to do the job of plurality. We want Parliament to think about what it wants, what it means by plurality, and start with the new Coms Act, which -- there'll be a White Paper next year, by saying, "This is what we want. Let's sweep away what we have so far and legislate accordingly."

    So personally, I would not want to make any amendments to the Enterprise Act. I would want to get rid of it and start again.

  • Yes, but the new statute then which replaces the Communications Act and the Enterprise Act --

  • -- what should it say? We would need a conception of plurality then which wasn't limited to plurality of views in newspapers but went much wider.

  • That would be the starting point?

  • That would be the starting point. In fact, there is a very good paragraph in the DCMS consultation on media ownership rules in 2001, which, for me, encapsulates where we come from, where it says different media companies produce different styles of programming, et cetera. "A plurality of approaches adds to the breadth and richness of our cultural experience."

    I think I would want to look at something which talks about a plurality of approaches, a plurality of voices but also encapsulates the idea of minimising corporate power in too few hands. So it wouldn't just necessarily be limited to news or voices of dissent. It would encapsulate those concepts of cultural experience and power.

    As I say, as a high level principle -- please don't ask me to give you a draft of a statute, because --

  • But I think it's possible to do, and if you -- if you go back to where Ofcom gets its authority from, there is a high level principle in the Coms Act which defines what Ofcom is, which is to promote the interests of consumers and citizens. It's very wide-ranging, very broad. Some of us had to fight very hard to get the word "citizens" in there in the first place. But now Ofcom draws on that for its authority in a huge amount of what it does, certainly in broadcasting and telecoms, and I think it's possible to start with something equally wide-ranging on ownership and plurality.

  • Thank you. May we move forward now to paragraph 12, where you identify your proposed six key changes to the current regime. Can I ask you, first of all, to explain the first one:

    "Discretion for initiating an inquiry should be shared by both the Secretary of State and by Ofcom."

  • Yes. This was a recommendation -- I advised the House of Lords Select Committee on media ownership in 2008 and this was one of the recommendations that came out of that report, which is: quite simply at the moment, it is at the -- solely at the discretion of the Secretary of State whether there is a public interest case at all. So had -- and in fact, on the most recent case, had Dr Cable felt that there wasn't a case to answer, as I believe his initial response was, he would simply have said that merger can go through, and Ofcom would have had no say, nor would the Competition Commission.

    So rather than remove it entirely from the Secretary of State, I think it's important to allow some political discretion. It could be jointly held so that if the regulator feels there is a case, it too can unilaterally initiate a public interest inquiry.

  • Unilaterally initiate it or -- somewhere between the two would be to say that if Ofcom were concerned, it could publicly invite the Secretary of State to do so, and then if the Secretary of State didn't want to, there would have to be explained reasons. I'm not promoting it; I'm merely asking you the range.

  • Yes, that would be an option, and I think Parliament would probably prefer that option. I still would worry about the way in which that discretion might be used, given, as we've heard so many times, the reluctance of politicians to take on media companies.

  • I understand that, but one of the principles which it seems to me emerges from Module 3 is that a number of the concerns that have been articulated -- very forcibly -- can be addressed, at least in large part if not entirely, by rather more openness and transparency, as indeed has started.

  • I think that is absolutely right, and it was very interesting when I went with the Lords delegation to Washington and we talked to -- I think they're called the Centre for Public Integrity -- about the way in which it works in America and any kind of transactions, lobbying, conversations that are done between members of congress and lobbyists or people acting on their behalf has to be in the public domain. Everything has to be recorded. Every conversation, every phone call, every meeting is logged. And there are very strict sanctions if these are not followed.

    I think members of the public, let alone the rest of us who have been involved in this for some time, were quite stunned when that stream of text messages emerged through -- giving us an insight into what was going on during that sort of merger process.

    I think you're absolutely right. I think if there was some provision made -- and it would have to be very strictly enforced and scrutinised, and I think there would have to be a shift in the culture, which is clearly what has happened in America, to ensure that it is properly observed. If it was properly observed, I think that would go a long way to solving some of these issues.

  • Yes, it couldn't be sidestepped by saying a mobile phone conversation is okay.

  • Precisely, absolutely, and participants would have to know that there would be severe sanctions if any of this turned out to have been done in secret.

  • The second principle:

    "Greater flexibility is required in the circumstances which might trigger such an investigation, including organic growth to a point which is deemed to threaten diversity of voice."

    I think you're not favouring here the recommendation which Ofcom proposes, namely that there should be periodical reviews after four or five years. Instead, discretionary reviews by Ofcom if certain thresholds are met. Have I correctly understood you?

  • Yes. I'm not -- yes, I think that's right. I was slightly worried by the Ofcom -- every four or five years is a long gap in between periodic reviews, and I think there would need to be more of a watching brief. I wouldn't mind a combination of the two. A review every, say, three years, combined with a watching brief that -- where there were clear potential triggers, like exceeding what I would call a soft cap in revenues. I think I say further on that I'm -- no, I don't say it here; I say it somewhere else. I'm actually quite keen on the Claire Enders idea of revenue caps, but not hard caps so that as soon as you cross a threshold, that's it, you're caught. It then triggers, as with the CCMR, the media reform recommendations -- it triggers potential obligations and responsibilities.

    I think it's possible to have a combination of the two: periodic reviews and triggers which are, if you like, soft triggers. So there are warnings, there are alerts.

  • You deal with this in paragraph 14. You do mention --

  • -- the Enders proposal of caps, but you're not regarding those as strict limits; you're suggesting if the cap is overtopped, then there must be a review and the review will then take into account the statutory criteria, which we'll see in our new Communications Act.

  • Which isn't quite -- the Enders proposal, I think, is if you overtop the cap, you're then divested to bring you to a point just below the cap. From my understanding --

  • I think that's right, although I think Claire slightly softened her position in evidence. But that's the idea as written and I would go -- I wouldn't go quite as far as -- I think it needs to be a flexible system because of the reasons around sustainability and the economic problems that we've heard so much about, which are real.

  • Can I ask I, please, about the sixth of the principles, because the others I think are clear enough:

    "The final decisions on divestments, conditions and mitigations when contemplating greater media consolidation should not be left to government ministers. Authority should be delegated to Ofcom with appropriate accountability measures."

    So --

  • Sorry, which paragraph are we on?

  • Sorry, it's the fifth bullet point. I'm terribly sorry.

  • The bottom of this page.

  • So you accord less weight to the notion that these decisions, owing to their importance, should be left in the last analysis to those with democratic accountability?

  • I do, with some reluctance. In fact, the Lords Select Committee in 2008 decided for that very reason -- reasons of democratic accountability -- to leave the final decision in the hands of the relevant minister. I think we've seen what problems occur when you do that, and I think at one point Jeremy Hunt himself said he would be quite happy for this to be taken away from him and be taken by someone else.

    So I think there is a -- given the amount of pressure that ministers/governments feel to try and accommodate the wishes of media organisations, and the importance of keeping media organisations on side in terms of electability, it seems to me we've now reached a point where that authority needs to be delegated to an appropriate regulator, which would obviously be Ofcom.

    There then needs to be some kind of accountability mechanism, and that's why I'm suggesting something like a mandatory meeting of the CMS Select Committee, a bit -- as happens now with the Channel 4 and the BBC annual reports. They both have to be presented to the Culture, Media and Sport Select Committee, and I think something like that, to ensure that there is a measure of accountability, would be appropriate.

  • Yes. Your sixth point, on the next page, a more explicit recognition of why pluralism is integral to democracy. Are you expecting there that the statute would reflect these policy objectives?

  • Absolutely. And again, this comes back to the rewriting of the statute, and I've indicated here how both the Office of Fair Trading and again, the House of Lords Select Committee both separately recommended that some kind of reference to the importance of news-gathering could and should be written onto the face of an Act. Again, I think we've heard over the last few months that for all the proliferation of online and blogs and new media, the pressure on original journalism on actually going out, finding facts -- accountability journalism, investigative journalism -- is -- the pressure is more than it's ever been before, and while I previously -- you know, I emphasised the wider culture environment, I think it would be also be important to have a recognition of the importance of original news-gathering.

  • The statute merely says the importance of journalism in the public interest.

  • That would capture the --

  • Absolutely, absolutely. And, of course, there could be further guidance issued by the relevant departments after that, but you're absolutely right.

  • Can we be clear on your underlying philosophy: the nexus between concentration of economic power and lack of accountability and a deleterious impact on the democratic process -- in other words, influence on politicians -- that is all clearly understood, but are you saying as well that there is a similar sort of nexus between concentration of economic power and unethical practices, or do unethical practices flow from some other systemic or underlying problem?

  • No, I think that there is a direct connection. There is this notion of -- and I think we've seen some evidence of it over the last few months -- almost a sense of untouchability by virtue of having that economic power. As I said, it's an economic power that translates itself in terms of relationship with the regulator, with employees -- we've heard evidence of that, I think -- and with governments. But I think there is a direct relationship to the culture and practices and ethics, in the sense that if you think you can get away with things, you're more likely to try them.

  • Thank you. That's clear. Paragraph 13. I think you're suggesting here a series of behavioural remedies which may be preferred in the right circumstances to divestment or fire sales, as you describe them.

  • Is that a fair summary?

  • That's exactly right, yes. I think the notion of divestment is -- it would be perverse, in an environment where we want to encourage more news outlets, to say that essentially someone -- an organisation that has successfully -- is so successful that it's growing should actually lose one of its news outlets would seem to me to be perverse, but we need to understand the rationale behind it and then mitigate the problems that emerge.

    That's not to say that there shouldn't, in extremis, be divestment as a sort of nuclear option. If we reach a situation where one media owner has, let's say, approaching 50 per cent of the national newspaper market, that would clearly be a realistic option. But before we get to that point, I think there are clear obligations that can be imposed in mitigation.

  • I've been asked to raise this with you: how do you think these behavioural remedies can be effectively implemented and enforced?

  • Well, I think this comes back, I suppose, to the whole kind of Module 1 issue about the mechanics of press regulation and how you implement them. I think I said in the first bit of my evidence that I was on the steering committee of the Media Standards Trust for its report and I think that proposal for a backstop independent auditor and self-regulatory bodies seems to me to provide the ideal framework for being able to work through some of these obligations. You say: you have to belong to one of these bodies, it will be enforced through some kind of backstop statute or auditor or regulator, and that regulator will ensure that the following obligations are observed.

  • You don't need to go quite that far for this, because if you are seeking participation or a willingness to undertake the activities which you set out in paragraph 13, one of the ways you could simply do it is by saying: well, if the authority -- Ofcom or whoever -- take the view that plurality is being affected, it could instigate an investigation which could be resolved by the acceptance of undertakings in lieu. In other words, we're not specifically requiring or mandating by law that you do A, B, C, D, but if you want to stop us doing something which you certainly don't want us to do, then you have to show us how you're prepared to make use of your influence and power in the public good.

  • Yes. I think that's right at the outset. There would then be the ongoing issue of continuing enforcement.

  • So you can use the stick, saying, "We're not going to let you carry on doing this or owning these media outlets unless you commit to doing X, Y and Z." There is then a commitment to do X, Y and Z, which, a year later, is breached or the investment stops or they leave the self-regulatory body or whatever.

    This was precisely the problem with the UILs with News Corp and Sky, because an awful lot of us who were asked to comment in the consultation simply did not trust News Corp to stick by the commitments that they were making in guaranteeing Sky's independence.

  • But the answer to that is some form of audit, annually or whatever.

  • Yes. Yes, undertaken by the regulator and with a clear threat of sanctions which is implementable if there is a breach.

  • And that's nothing to do with restricting free speech at all.

  • It's the process. That's absolutely right. It comes back to -- as I often do, it comes back to Baroness O'Neill's distinction between corporate speech and individual free speech, between process and content. So you don't touch the content, but you do legislate on the process.

  • Shall we break for lunch?

  • Yes, we will break, but before I break, it's obvious that you've given considerable thought to what a new statutory provision would look like, and doubtless through the various committees that you've advised, thought was given to what it might say. If you have any views as to that and to the language that might be used that you want to share with the Inquiry, I'd be very interested to see it. I'm not saying any commitment, but you've articulated, in language which is clear but not confined, the precision that would be necessary for legislation. I'm not suggesting that you now embark upon three months' work, but if you do have any ideas on that, I would be interested to see it.

  • Thank you. Right, 2 o'clock.

  • (The luncheon adjournment)

  • Professor Barnett, may I raise two wider issues in relation to plurality before I move on to media relation?

  • Then, if I may, I'd like to add one comment to what I said earlier.

  • Yes, please do.

  • It was just in relation to that final question which you posed, which I thought was absolutely crucial in terms of the linkage between ownership and culture, practices and ethics, and I'd remembered that in my submission to Module 3, I had a section, which I obviously won't read now, on plurality and editorial influence, and I gave a few examples of how it operates, from various biographies, et cetera. Then I said at the end:

    "The professional values which journalists claim to embrace and to which the vast majority certainly aspire will inevitably be influenced by and sometimes subordinated to the corporate world vision and editorial inclinations of the owner and editor."

    And as I say, I've given examples in that submission of how that works. I think there's a very clear connection, linkage, between the orders coming down -- or the imperatives coming down from the top and what actually happens on the factory floor, so to speak.

  • Yes, well, that reflects, doesn't it, the evidence of a number of witnesses that a proprietor doesn't need to tell his editor and the editor doesn't need to tell his or her staff what the line is.

  • There may be two routes into this. The first is the direct one, which is influence by osmosis, if you like, from the proprietor down to the journalist. The second, the more indirect one: too much power concentrated in too few hands. That breeds a sense of impunity within the organisation and therefore a degree of failure to adhere, I suppose, to ethical standards, and part and parcel of that phenomenon, reluctance by politicians to address it. So you have the direct route and the indirect route, arguably creating the problem.

  • I think that's absolutely right and I think that sense of impunity, I think we've heard from -- well, unfortunately not that many individual journalists, because I think quite a few are concerned about raising their heads above the parapet, but the obvious witness is Richard Peppiatt, who talked about what he was actually told to do, and I think this comes back to the notion of some kind of regulatory mechanism for whistle-blowing. I think the whistle-blowing aspect for those journalists -- and as a journalism educator, I think this is terribly important -- who want to aspire to the kinds of ethical and professional values they might learn and suddenly find themselves in an environment where they are asked either to ignore them or to routinely transgress them -- there needs to be some kind of mechanism to address that, but the cause of that problem is, I think as you say, both that process of osmosis and the sense of impunity.

  • I was just putting those forward as ideas, not necessarily as expressing any opinion.

  • I think they are ideas which are well argued and accurate, in my view.

  • Can I go back to plurality. Do you see there as being a fundamental distinction in principle between newspaper merger situations on the one hand, which are catered for by the existing legislation, which are rather binary, and, on the other hand, organic growth? Because organic growth isn't, of course, catered for at present, and it might be said to be the price of success, or rather you wouldn't necessarily want to penalise success. That slow organic growth then leads either to structural remedies -- your being forced to divest -- or the softer behavioural remedies you suggest might be appropriate in that latter instance.

  • Yes, and that is entirely why I would prefer the behavioural remedy approach with the caveat that I made earlier, that at a certain level I think in a democracy it gets to the point where you have to say: there is a price of success here and it's that we simply cannot allow an individual or a corporation to have this much share of voice, this much share of influence over people's opinions.

  • There's another issue as well -- it may be a sort of pragmatic one -- that we may be seeing further concentration in the market. The market is dwindling. We may be increasingly looking at the possibilities for foreign investment because after all, you can't force people to invest in the newspaper market, but if people are looking at a range of structural remedies and behaviour remedies which will penalise them if they are successful, what some may say you're creating is a series of deterrents for anybody to enter this market. So you might, by being too stringent, in fact be signing the death knell for the newspaper industry. I put it quite high and tendentiously but only to illustrate the point. Do you think there's any merit underlying it?

  • I do. We do have to be aware of the whole sustainability problem, and when you have an organisation that has been prepared to invest -- and News Corporation is often given as the prime example -- an organisation that has been prepared to invest in news-gathering, that has created a 24-hour news channel from scratch, running at a loss, and is clearly high quality, why should you want to penalise a company like that when we're actually running out of people who are prepared to invest in news-gathering?

    So I think these are genuine issues, they're important issues, but the crucial thing is to get the balance right and at the moment I think we've got the balance wrong, and I think that goes back -- the roots of that go back both to political fear and to the inadequacy of the current statutory regs.

  • The problem is where there isn't something that is inevitable about a situation. You have certain bodies who support newspapers for reasons which nobody is, for a moment, challenging, but if you're encouraging individuals to invest in a business that is unlikely to be profitable, then there has to be a reason why they're prepared to do it.

  • And it's quite difficult to see what that reason is, if it is not an ability to promote views or support particular opinions.

  • I hope I'm not -- maybe I haven't been expressing myself very clearly. I hope I'm not being interpreted as saying that newspapers should not be allowed to express partisan opinion or frame a news agenda in the way they want. That's not my -- I mean, I do think there is an issue about the separation of news and comment, but that's a separate issue.

    I'm not suggesting that. I think the behavioural remedies can be a range of remedies, including things like guaranteeing further investigation in news gathering, investment in training. I don't think we need to go as far as to say that newspapers would need to withdraw from being partisan at all. The key question is ensuring that there are sufficient numbers to make sure that those partisan views do not all represent one part of the spectrum of opinion or ideas.

  • But if they emanate from people with sufficiently large sums of money that they can afford to run this sort of enterprise, how unlikely is that?

  • Is it they are not likely to come, if not with identical views, then with views that are not necessarily extremely at variance?

  • I think that raises a question about what happens when you get one part of the spectrum of opinion overrepresented and another part severely underrepresented. At that point, I think you would have to start thinking about -- and perhaps we're not there yet, but we may not be far from it -- the Scandinavian model of public subsidies. I can sort of hear the sound of kind of running feet as I say that, certainly from the press. The notion of any kind of public subsidiary in the press as we know it is clearly anathema, but it is not an alien concept in other European countries, in other mature democracies, for that very reason.

  • Well, that's the point. I'm merely talking about the true breadth of what plurality actually means.

  • Yes, and I think -- and the other question is: who actually decides? Who makes the decision that there is a part of the spectrum that isn't being adequately covered?

  • Professor Barnett, the public interest now, which is the first section of your statement. There are a number of different ideas you advance for our consideration, but the first is the possible weaknesses in the current code, by which of course I'm referring to the Editors' Code of Practice, and the self-serving definition of public interest in freedom of expression itself. Are there some points there you'd like to expand on for us?

  • To be fair, I had a fairly good go when I gave evidence last time on the public interest. The only thing I would add is I don't think it is helpful to have a number of different definitions or interpretations of what the public interest means. I think it is -- it is a term which is often abused rather than used sensibly.

  • You have to be very careful about that for this reason: that, as I've said before, it actually means different things depending upon the context. We've talked about several during the course of the last few days, and therefore, to attempt a definition that encompasses all is probably simply not possible.

  • It depends what you mean. Which encompasses all what?

  • The various circumstances in which the public interest might arise. There's the public interest in the division between privacy and invasion thereof. There's the public interest in when you prosecute people for crime and when you don't. There's the public interest in plurality. The constituent features of each of these concepts are slightly different.

  • They are. What I'm specifically talking about here is a public interest in terms of legitimate journalistic enquiry. So specifically not about ownership, where I think there's a very different set of meanings about the public interest, and not about the criteria on which prosecution may or may not be brought.

  • I appreciate that, but what I'm saying is that if you start to try to define "public interest", what you will find is that people will use the definition inappropriately.

  • Absolutely, which is why I think it is important that it is defined in terms of legitimate journalistic enquiry, and this is what I've proposed here. I genuinely don't think it is that difficult and that is why I have prayed in aid, so to speak, the piece of public attitude research which we did for the British Journalism Review, which I've submitted.

  • Yes, I've read that. I'm somewhat concerned that you took as one of your examples a High Court judge who had large investments in foreign companies linked to the illegal drugs trade.

  • Can I ask you, please, about that research?

  • What was your sample of people you asked?

  • It was a YouGov survey. I'm pretty sure it was 2000. It was their standard -- sample size 1,658. And that's a standard YouGov online sample. Their methods -- it's a YouGov omnibus survey. Fairly standard technique for gathering data. I don't have any problem with the sample size or its representativeness.

    Can I just say that that particular question was repeated from a survey done ten years earlier, so I abdicate myself of all responsibility.

  • It might be said -- and this isn't just a flippant point -- if you look at the example you've alighted on in your report, which we can see is table 5 in the survey. It's on page 01569, the well-known England footballer who's married with young children and is having an affair. You've got only 6 per cent who say it's definitely in the public interest and should be published, but you have 30 per cent who say it's not necessarily in the public interest but nevertheless it should be published. So either they're not sure or they think on balance it should be published in the public interest.

  • You have a third of people in that group. That's at least enough to accommodate the readership of some of the leading sections of the press who dabble in this sort of story, isn't it?

  • Not if you look at the figures for tabloid versus broadsheet readers, because if you look at the way it breaks down by newspaper readership, the proportion of tabloid newspaper readership who gave that response -- that it's a private matter and should not be published -- did fall, but it only fell to 50 per cent, so half of all tabloid newspaper readers gave that response.

    Can I just say: very often when you do surveys like this, you have a sort of inkling of what's going to come out. I've given three or four presentations now of these data, this research, and the way I always do it is I put the question up and say, "Let's see how well plugged in you, the audience, are to the British psyche, to British popular opinion. Have a guess at what these results are going to be."

    And the maximum I've had for that, the story is a private matter, is about 25 to 30 per cent, and I have to say that was my guess, in advance of this research. I was really quite stunned -- and I deliberately framed -- this was my question, by the way. The judge one wasn't, but this was mine, and I deliberately framed this question to make it as similar as possible to the role model argument. So it's a well-known national footballer who is married and has young children having an affair. So there's plenty of potential public interest role model justifications in there for it to be published, and even if you don't take -- you don't think there's enough of a public interest argument, there's certainly enough there to say: okay, it's interesting. It may not be in the public interest, but it's interesting, and yet even that only got 30 per cent of people giving that response.

    I just felt that third option -- it's a private matter and should not be published -- and "not" was in capital letters. This was an online survey, so you see the "not" in capital letters. I thought that was actually quite draconian. I was really very surprised when we came up with this result.

  • What I'd be interested to know -- I mean, my comment about the High Court judge was flippant.

  • If I don't do that sort of thing occasionally ...

  • But I'm interested in your answer that it comes from an earlier piece of research, because what interests me is if this is a repeat piece of research, I'd be fascinated to know what happened ten years ago.

  • I do actually give a reference. It's David Morrison and Michael Svennevig and it was done at the University of Leeds, at the bottom of page --

  • With very similar results, wasn't it?

  • They were virtually identical.

  • I'm sorry, I didn't pick up the footnote.

  • The wording wasn't different. The answers -- the potential answers were slightly different, because we wanted to get in this idea of something that was interesting and therefore should be published, whereas they just had "definitely should be published", "probably should be published", et cetera. That's in the piece.

  • Taking that into account, the results are very similar and seem to me to suggest a really quite interesting stability of public attitudes over time.

    If I maybe just make one more point about this --

  • What's interesting, before you make your point, is that you talk about June 2012. The figures may not have changed much, notwithstanding the last 12 months.

  • Mind you, 60 per cent or 58 per cent saying the story is private and should not be published is pretty substantial.

  • I think it's very substantial. And for me, it does give -- it does make me question -- you know, I've heard the role model argument and I've understood the rationale for them and had there been an obvious public backing for them, then perhaps you could say, "Okay, this does sort of speak to some sense of collective ethics." But it doesn't. I'm quite clear now that it doesn't.

    The other point I was going to make is that the other argument that is made for some of these -- the more kind of revelatory journalism is that that's what people want. So you have -- why do people buy tabloid newspapers? But in fact -- and there was an article just last Sunday by a broadsheet journalist in a liberal newspaper suggesting that 14 million people read the tabloids and yet the whole Leveson debate is being dominated by the three or four million who read the broadsheet newspapers.

  • I was languidly reading the Financial Times in that particular paper --

  • I will give you the reference.

  • No, I know the reference. I'm just referring to it expressly. I didn't mind too much the reference to the Financial Times. But sorry, you carry on.

  • And then you start thinking: okay, 14 million people read -- clearly a lot of those nevertheless still think there are limits to the way in which people's private lives should be invaded, what should be published, but even that 14 million represents less than a quarter of the total population. So there has to be some sense here of collective attitudes, not just those that are held by those who buy tabloid newspapers. For me, this is partly what this piece of research does.

    I would love to have the resources to do something rather more substantial and sophisticated, in particular looking at what difference it makes if you tell people about the methods -- journalistic methods that are used. Some might be regarded as rather more appropriate than others for actually getting a story. Does it matter if a story is obtained by virtue of an injured party simply talking to a newspaper? Does that make a difference to the sense of whether it's appropriate or not?

    But as it stands here, I think we have, for me, a really clear line. Going back to your very first question about different interpretations of the public interest, I think the public understands the difference between the public interest in exposing wrongdoing, holding to account, speaking truth to power -- all those phrases that we've heard over the last few months -- and revealing the innermost secrets of celebrities or well known people or people who might have had misfortunes or done something inappropriate that is not the same as accountability journalism.

  • This is very important, because of the constant criticism that the Inquiry has faced -- and I don't complain about criticism -- that it's not involved the expertise of tabloid and mid-market journalists, that it's all been focused on liberal with small "L" political thinking, and that's simply unbalanced and inappropriate, and merely to recognise it allows one to aim off, as it were, and to make sure one doesn't fall into a trap. But this research seems to suggest that the criticism may not be as valid as it is sometimes suggested.

  • Well, I've heard the criticism levelled and it's levelled for two reasons. One I think is a perfectly valid reason, which is good tabloid journalism is something different from broadsheet journalism or broadcast journalism, and that expertise is missing. That's a valid point to make, whether or not it makes any difference.

    But the other is a much more self-serving point, which is: "You can't possibly hope to understand what we, the tabloid press, how we the tabloid editors work or should be allowed to work because there is no expertise and we are the ones who represent public opinion." It's that suffix that is always put on the end: "We're the ones who understand what really goes on because we have the popular readers." We have --

  • "And we make money." Well, yes. "We make money", absolutely. And I'm afraid, for me, that's what -- what this research does for me is to give the lie to that. And as I say, my background is in sociology, I've been doing surveys for 30 years and more often than not, you have a feel for what's going to come out when you ask a question. This completely threw me.

  • Thank you. That's very clear.

    Those are all the questions I had, Professor Barnett.

  • If I could just add one more thing -- and this is essentially carrying on from the public interest. It's for that reason that I am still very much in favour of a statutory public interest defence, because I do think that would enable both what I believe now to be the popular will, and, I think, the greater sense of -- amongst those who care about journalism, who care about journalistic ethics, believe needs to be protected, can be protected in law through a very clear distinction between journalism that really matters, that a democracy really needs, and journalism that is there simply to sell newspapers or make money.

  • You've just kept yourself there for a couple more minutes, Professor Barnett. What do you mean by "statutory public interest defence"?

  • I mean a defence that could be used against more or less any -- I'd better be slightly careful what I say -- more or less any -- that could be introduced as a defence to crimes that are currently -- currently have no public interest defence. So I'm thinking about the Bribery Act. I'm thinking even about RIPA.

  • Let me challenge you about that, please.

  • I've done this before with another witness, so you may have seen the challenge.

  • Let's just consider it for one moment. I won't do it again, I can tell everybody whose had to listen to it once.

    There is a very important principle that journalists do not reveal their sources. That's very important because the source has to feel protected, and if the journalist is going to hold -- or to expose wrongdoing to the public, there has to be a mechanism to protect people. However, that protection is a protection for the source. It's not intended to be a protection for the journalist. So far I take your nod as agreement?

  • Only because it doesn't come on the transcript in that way.

  • Now, let's move on. Let's take a story that a journalist wishes to publish. The journalist may believe that your -- we won't say footballer -- your politician is having an affair. He may believe that he can expose that affair, which has no other public interest, by hacking into his email account. So what he says is: "I've got a source that says this politician is making or receiving corrupt payments. It's absolutely in the public interest that that be exposed." He has no such source.

  • He uses it to get the information to reveal the story and he publishes the story.

  • It then transpires that he's hacked into the email and committed a crime.

  • Sorry, the story he's published is not one of corruption but it's one of having an affair?

  • There was never any corruption.

  • It's all to do with -- first of all, the privacy of the politician has been invaded without good reason. Secondly, a crime has been committed without good reason. So now one gets to the police investigation, if there ever is one.

  • Because it may never be reported or whatever. There are all sorts of reasons that will cause that leap not to be made, but let's assume there is one. The journalist says, "Well, I had a source and the source told me that this politician was corrupt." "Well," says the policeman, "you're going to have to provide me with some justification for that, because I think this is a clear breach of the law, designed to delve into the privacy of this politician." And the journalist says, "I'm very sorry, I can't do that because I'm not prepared to reveal my source."

  • But the -- it would have to be a clear -- one of the criteria of a public interest test would have to be that the story published was manifestly in the public interest, and I don't think it's difficult to --

  • But, you see, you can't necessarily link it because you can't necessarily link -- that's why I said it would never get to the police. You can't necessarily link the story that's eventually published with the hacking into the email. He won't say, "I got it by hacking into an email."

  • I may have misunderstood, but if --

  • In any event, with great respect, I'm not sure you're right, because if there's a public interest defence, that can only bite at the moment the offence is committed. It can't be self-justified or self-refused later, because let's assume there wasn't any story about a private affair. Let's assume that the journalist merely believed that the politician was having an affair but justified hacking into the email by reference to some story about corruption.

  • Now, he has committed the offence when he hacks into the email. What comes thereafter is neither here nor there.

  • The moment he commits the crime is when he hacks into the email.

  • But if he hacks into the email with the honest -- and part of this -- this would have to be a mechanism, a regulatory mechanism -- and I think this is actually laid out in the Media Standards Trust report -- where -- for a -- you first have to get permission from someone senior within the organisation. It's exactly the way the broadcasters do it now. It's a two-stage process. You first have to say, "I have prima facie reason to believe that there is something serious going on here. I want to investigate it. Do you, Mr Senior Editor/ director of editorial standards, give me permission to go and hack the email or listen to the phone message?"

  • And this is audited. This is written down: "The reason why he's been given permission to do this is as follows."

  • Fine, but he won't necessarily reveal his source to the editor.

  • Well, maybe there has to be provision. I think most journalists would be prepared to reveal their sources to their editor --

  • And is the editor going to check up?

  • That's entirely up to the editor.

  • The point is that it's entirely self-serving. In other words, it's possible -- I'm not necessarily saying anybody's ever done it, but the criminal law has to cope with this possibility.

  • That it will be open to the most horrific abuse, that a journalist will say, "I've got a source, he's a wonderful source, I've used him a gazillion times. Every single time he's come up trumps and this is what I want to use him for now, and this is what I think: that there's corruption."

    With the best will the in the world, the editor may say, "Oh yes, you've named that source, and I know he's been used on these other stories", but there's no way of going behind to see whether this particular story is being pursued in good faith or is merely the cover for some entirely inappropriate privacy invasion.

  • I understand that, but if this criminal act is then committed and is clearly committed in the knowledge that it is criminal and permission is given to carry out this criminal act, then clearly it is a risk that is being borne by the journalist, by the editor, by the media owner. All I'm saying is that there are circumstances in which there should be a defence provided. If they want -- that's not to say there shouldn't be a prosecution.

  • But you wouldn't have a prosecution, Professor, because before the CPS would prosecute, they would have to feel it satisfied the code test for prosecutions, one of which is an appropriately realistic chance of conviction, and if you can't ever undermine the assertion of the journalist that he had a source that gave him a public interest -- if there's no evidence that allows you to undermine it, then it becomes impossible.

  • That's why I invited the director, during the course of the Inquiry, to consider whether he would publish a guideline on the approach to public interest, in the context of prosecutions, of journalists, and that of course, as you know, he's done.

  • He has, and I was involved in one of the consultations.

    The problem with that is that it is further down the road. You've actually -- by that time, you've committed the crime and you're taking a chance as to whether you're going to be prosecuted or not.

  • But maybe you do have to take that chance on the basis that if you are doing this entirely square and you've covered yourself with your editor and all the rest of it, then that will all emerge, and if you're investigated by the police, you'll be able to lay it all out. But if you provide a public interest defence --

  • -- along the lines you suggest, it is open to terrible abuse. I'm not going to say that it will be abused, but I'm absolutely not going to say it wouldn't be abused.

  • And you don't think that there are ways of writing safeguards into a law like that to ensure that -- I mean, it seems to me that it's not that different from the guidelines --

  • It's enormously different. It's not only in degree; it's different in kind.

  • Well, it's certainly different in kind.

  • Because ultimately it doesn't constitute a defence. There are a number of mechanisms of protection. The first is the CPS, who, one would hope, undertake -- and I have confidence -- their responsibilities in this area with integrity and propriety. I don't just hope it; I know it.

  • Secondly, there is the prospect of the journalist being able to say to the judge: "This is an abuse of the criminal justice system."

    Thirdly, there is the prospect of that the jury say, "Well, I don't care", the Clive Ponting defence.

  • And finally -- and I wouldn't want anybody to forget it -- there is a judge sitting behind all this, so that even assuming your journalist is convicted, he is able to say, "There isn't, in truth, a public interest defence, but I'm satisfied that actually, if you like, there was entire good faith" -- or all the rest of it, whatever formulation you want to use -- "and therefore I absolutely discharge you from -- I'm not passing a sentence. You're absolutely discharged."

    There you have a whole series of protections, but isn't it important, I ask you, that before journalists do break the law in order to obtain stories, that they think very, very carefully and that they appreciate that they are in fact crossing a line?

  • Yes. The answer to that is: categorically, yes. I think my concern is that we've heard a lot over the last few months -- a lot of self-serving evidence about the chilling effect of regulation, et cetera, and I suppose my concern is while I find most of those arguments and most of that evidence wholly unconvincing and self-serving, I do think there is an issue around the kinds of journalism that we're all agreed we want to try and promote and sustain and safeguard and that there is a risk that that's the kind of journalism that might -- that could be better promoted if there was a better sense of what was legitimate in the public interest.

  • That's what I hoped the director would do when he promulgated guidelines. I entirely agree that I would like to do that all that possibly can be done to promote good journalism. How many times do I have to say this? An enormous amount of the day-to-day work of journalists is not merely engaging, informative, valuable in our democratic society, but essential to our democratic society.

    However, it may be thought after this Inquiry -- and I will reach my own views -- that there is a not insignificant culture within certain sections of the press that is the very reverse of all that I have just said, and whereas one has to do everything one can to promote the first, one ought to do equally everything one can to suppress the second.

  • And the risk is that if you are going to be unethical in how you go about your work -- whether it's a trade, a profession or business, it doesn't matter. If you're prepared to be unethical and you don't care about the rights of others, then that's not a good starting point to be able to rely on people to tell the truth as opposed to -- in connection with sources, because not to disclose your source is core, as we agreed when you required me to start this merry-go-round. It's core to investigative journalism, and it's a principle that should only be undermined -- and it can be undermined in law, as you know, but should only be undermined for very, very good reason.

  • Can I just say, taking that a stage further, the suggestion -- the logical conclusion from that would be that those public interest defences that currently exist -- for example, in the Data Protection Act -- should be excluded.

  • Not quite. I mean, you could be right -- that will cause excitement -- but not necessarily, because the Data Protection Act also covers the publication. So it may be you've got the information, and of course you've committed an offence by getting it, which may or may not be recoverable, but what data protection is also concerned with is the publication of that information, and the publication of the information would require the exercise to be conducted at a slightly different moment in time. You remember I spoke to you -- when you are talking about hacking into phones or bribery, it's the moment the offence is committed.

  • If you change the moment to the moment that you're publishing, then you don't have a public interest defence to the breach of the data protection, because you might have had a public interest defence to get the information to find it out -- you've blagged the information -- but if it actually gets nowhere, if it's inappropriate, then you still have to prove that you satisfied the statutory defence at the time that you're publishing it, I think.

  • So why can't that then be translated back into those statutes where currently there is no public interest defence at all?

  • Because you're talking about a different moment in time. You're talking about the commission of that crime as you commit it, not as you seek to obtain the fruits of it.

  • Then maybe, if there is going to be a public interest test in statute, it could be framed in such a way that it does the job that you're asking it to do. If it's a question of which moment in time we're looking at -- I mean, I entirely accept that it needs to be proofed against abuse and that there is clear evidence that there might be those who would seek to abuse it.

  • Yes, Professor, people can criticise me for not being an expert in lots of things. 40 years in the criminal law actually must allow me to say I know something about that.

  • This is where I do not feel on safe ground, I have to confess.

  • Thank you very much indeed.

  • It's a pleasure, thank you.

  • Our final witness today is Mr Sprake.