Lord Justice Leveson was appointed in the summer to chair an inquiry under the Inquiries Act 2005 into the “Culture, Practices and Ethics of the Media”. The inquiry came after the extraordinary revelations of illegal practices at one particular weekly newspaper. That newspaper, the News of the World, is no longer in publication after it was revealed that the paper was involved in regularly breaking the criminal law by way of hacking into the private voicemail messages of people in order to get stories. Initially it was asserted that the practice was confined to one rouge journalist and one private investigator, both of whom were prosecuted for offences relating to phone hacking.
Since the fresh revelations over the summer various investigations and inquiries have been taking place. The Metropolitan Police are investigating the wider issues of phone and e-mail hacking, Strathclyde Police are investigating similar matters in Scotland at the direction of the Lord Advocate, House of Commons select committees have heard evidence on the matter, including from Rupert and James Murdoch, and much has been said and written in other forums.
The inquiries by Lord Justice Leveson and the House of Commons select committee have had to tread very carefully in order to safeguard any potential future prosecutions that result from the investigations by the Metropolitan Police and Strathclyde Police. The Police have suffered their own criticism though. The Metropolitan Police suffered some quite high profile casualties as a result of its failure to investigate the issue properly and fully in 2006 when it first came to light and Glenn Mulcaire was given a custodial sentence for phone hacking.
At the time the News of the World insisted that it was confined just to one journalist and to a private investigator therefore limiting the scandal to the Royal Family. However, as time has passed it transpired that the practice was, at the News of the World at least, quite widespread. It is understood that the paper hacked into the voicemail of Milly Dowler deleting messages from it when it became full. This gave the police and more importantly her parents, family and friends a false sense of hope that she might still be alive. The public, quite rightly, condemned this particular use of phone hacking and were quite clearly disgusted by it.
The evidence that has been given to the Leveson Inquiry has been rather interesting and has raised some important points and issues. It has, however, given us an insight into the mind-set of the tabloid press. Some of the most controversial evidence given to the Leveson Inquiry to date came from a former News of the World journalist, Paul McMullan. It’s hard to select just a few of the things that Mr McMullan said during his evidence that caused one to raise an eyebrow as there are so many examples from which to choose. However, as I have identified above the hacking of Milly Dowler’s phone I believe that this would be a good starting place to look at Mr McMullan’s evidence.
In respect of the hacking of Milly Dowler’s mobile telephone voicemail messages Mr McMuallan appeared to argue that the hacking was in fact a good thing. His argument was based upon the premise that the police can get nothing right and that their inability to investigate properly means that journalists need to fill the gap and investigate for them. This, I submit, is a false presupposition to have made. Yes, there are times in which the police do not investigate things properly. Indeed it probably happens fairly frequently. Senior officers can get drawn down lines of inquiry that they believe are the correct ones and ignore others resulting in innocent people being caught up in the wake of the investigation, or the investigation stalling, evidence being lost and the police without any further direction to take the investigation in. However, I would suggest that failings on such a grand scale, particularly in high profile cases, are really quite rare.
The press, no matter how well meaning they might be, should not be engaging in any activity that frustrates a police investigation. The Milly Dowler example is a good one for illustrating this point. The actions of those involved in the hacking were not only illegal, but because the messages were being deleted it brought a false sense of hope to the family and friends that Milly might still be alive, after all he voicemail messages were clearly being listened to.
Mr McMullan’s evidence to the inquiry was, in general, just as shocking as it was revealing. It appeared that he had no moral or ethical compass whatsoever and took the view that anything that was necessary to get a story was acceptable. Mr McMullan also failed to appreciate that there is a significant difference between what the public are interested in and the public interest. Simply because the public are interested in something doesn’t mean that they should in fact be given it on the pages of a newspaper.
There are some really quite perplexing problems to deal with here. It is clear that the press need to be ethical in the way that they carry out their duties. While the rule of law is important it is not inconceivable that a story of such great public interest cannot be obtained by any legal means. It would therefore be, in my view, appropriate to act outside of the law in order to obtain the evidence needed to reveal it. It should not, however, be a regular practice and should be reserved for only the stories which carry the gravest public interest considerations. The principle question in my view should be that in all the circumstances was the infringement of the law fair, reasonable and justified?
The word “regulation” has been bandied about an awful lot since the fresh revelations of phone hacking over the summer months. Principally it would seem that the argument that as the press has failed to self-regulate itself that an external regulator must now take over this role is becoming a somewhat popular one. I would fundamentally disagree with this proposition for two main reasons. Firstly, what is really meant by “the press” is “certain sections of the press, in particular the tabloid press”. As has been pointed out much of the press is more than capable of abiding by and upholding basic moral and ethical standards. Not all newspapers, for example, have been involved in the interception of voicemail messages, not all newspapers regularly engaged in “blagging” information, not all newspapers regularly employed the services of private investigators. We are, in effect, looking at one small section of the press and it is important to bear this in mind. My second reason for disagreeing with this proposition, and it is by far and away the most important, is that in a free and democratic society it is both necessary and desirable to have a free press.
Countries of whom the UK is often critical in terms of their adherence to commonly understood standards of democracy and human rights will often be ones where the press is heavily regulated or censored. It would be highly undesirable to follow those countries down the routes of licencing journalists and subjecting them to regulatory regimes.
There are, of course, laws in place to protect the morals and decency in society. It cannot be the case that journalists have a “get out of jail free card” by virtue of their chosen profession when it comes to breaking the civil and criminal laws of this country. Indeed the same would be applicable to the organisations that employ journalists.
When a journalist breaks the criminal law there is a balancing test that must be carried out. That balancing test is essentially looking at two competing elements of the public interest. First is the public interest of the story which they had written as a result of obtaining evidence by unlawful means. This then has to be balanced against the public interest in upholding the rule of law and prosecuting those alleged to have broken the criminal law. It is for prosecutors to decide, in the first instance, whether the public interest in prosecuting the journalist for their alleged infringement of the law outweighs the public interest surrounding the story that they broke.
Of course there are other factors that would need to be considered in any prosecution decision. Firstly, it would have to be considered whether the evidence obtained illegally could have reasonably been obtained in a way that was legal? Have all reasonable attempts been made to obtain the evidence legally?
The issues are not just strictly confined to the auspices of the criminal law. The issues surrounding press practices, conduct and ethics find themselves in the territory of the civil law also. Perhaps most acutely in terms of civil law areas are those of defamation and privacy. The latter of these two has proved to be rather controversial in recent years.
There is a fundamentally understood right to privacy. All people are entitled to a private and family life and there are elements of our lives that we all wish to keep private. That is not necessarily because, as Mr McMullan would have us believe, we are paedophiles or are up to no good. Privacy is not, as Mr McMullan would have us believe, only the space needed for people to do bad things. Yes, undoubtedly some people do get up to bad things in their private life. However, very few of us would be happy with, as an example, a copy of our full medical records published with nothing redacted.
There is a need, therefore, to consider carefully when to begin publishing details of a person’s private life for anyone to read. I remain entirely unconvinced that much of what has been published under the guise of being in the public interest in relation to people’s private life is indeed within the public interest. I rather suspect that it is more likely to fall into the category of things that the public are interested about (although I personally fail to understand why).
There are of course innocent people to consider in these situations. Anyone who has experienced the breakdown of a relationship because of an unfaithful partner will know the pain and suffering that it causes not only the other partner but any children who also happen to be involved. Imagine for a moment that your partner has an affair with another and the way in which you discover is by seeing it on the front page of the Sun. Imagine for a moment an incredibly painful and emotional time in your personal life being splattered across the pages of the Daily Mail. What if you opened the pages of the Daily Record and saw your partner kissing another person? Nobody wants that to be in public domain for everyone to read.
When we talk about privacy in these cases we are often talking about not only the privacy of the celebrity who has allegedly had the affair but also the privacy of their wider family. There appears to me to be little thought given to that dimension by certain sections of the British press.
I remain entirely unconvinced that a person’s apparent hypocrisy as portraying themselves as a faithful family orientated person necessitates the divulgence of the details of an alleged affair into the public domain. There might be, on some occasions, a public interest in such situations being divulged into the public domain, but I suspect that they would be few and far between and cannot think of any of the recent “kiss and tell” stories that have been divulged this year that would be sufficiently serious enough to justify their being published.
I am not suggesting that people’s private lives are completely off limits. There must be a public interest in interfering with that right though. An example might be the revelation that former Home Secretary Jacqui Smith had claimed for adult-rated films on her expenses. On its own the nature of what was claimed for might not have been in the public interest but in the wider scandal in which it came to light that might well have, and in my view did, shift the public interest balance in favour of identifying them as adult-rated.
I have written on this site before on the question of super-injunctions (those posts can be read here and here) and I do not want to spend much time considering them here other than to say that they are somewhat of an anomaly given the way in which social media is influencing the way in which people get their news. There are also jurisdictional issues to consider. An example would be the case of CTB and how a Scottish newspaper could openly name CTB while those in England could not.
Injunctions, or in Scotland interdicts, clearly do have their place. They are granted only after careful consideration of the evidence placed before a court. Evidence which people openly flouting them and breaking them on Twitter, or indeed on the floor of the House of Commons, probably have no knowledge.
It will certainly be interesting to see what Lord Justice Leveson proposes in his final report and just what will come to light as he continues his inquiry and as the police investigations continue. However, I would lament proposals for regulation of the press by way of an “independent regulator” as that would begin to take us down a path that endangers free speech and expression. Perhaps, as has been suggested by some already, that tough financial penalties for those press organisations who wilfully flout privacy rules in their quest for a story without good justification. The idea of punitive damages may not be such a bad one if it were to avoid going to down the path of regulating the press. I am only glad that it is not I who has been tasked with brining proposals forward on this issue because if the wrong proposals are brought forward it could have seriously damaging and long-lasting effects on our democracy.