Privacy Commission Day 4, Witness 1: Alan Rusbridger

The PM Privacy Commission spoke to the Guardian's editor Alan Rusbridger on Tuesday June 21, 2011. The commissioners are Sir Michael Lyons, Lord Faulks QC and Baroness Liddell.

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NB: This transcript was typed from an audio recording. The views expressed by the witness are their own.

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ML: Welcome back to the PM Privacy Commission. And this morning we have in front of us Alan Rusbridger, Editor of the Guardian. Alan, thank you very much for coming along. We're very eager to explore these issues from the perspective of an Editor, and I've found it, I have to say a bit difficult to encourage some of your colleagues from other newspapers to come and join us. It's a special moment for us. Perhaps I can start by asking you to give us your view on whether current arrangements properly strike the right balance between the freedom of the press to investigate things fully and the privacy rights of the individual

AR: I should begin by saying that my worry is about the libel laws not the privacy laws, and I think you'll find the same pretty clear dividing line between the so called broadsheets and the so called tabloids, that the tabloids are more worried about privacy and the broadsheets more worried about libel. So in relation to, and there's obviously a connection between these two because the more as an editor I want to press for protection for what I write, for what our journalists write, i.e. if you want better libel laws people are bound to say well what guarantees are you going to give us that you're not just going to use these better libel laws for, to kick down bedroom doors. That's always the trade-off between libel and privacy. In so far as privacy goes, I can only say that personally the Guardian's never been yet threatened by anything that looks like privacy. We've been done for everything else, we've done for Official Secrets, contempt, confidence, malicious falsehood, you name it we've have every law thrown at us. But I've been doing this job now for 16 years and I've never had anything that said you're infringing someone's privacy. So I'm prepared to be outraged about privacy but all I can say is it's not affecting the work that the Guardian does and I would say the Guardian has a distinguished or active record of doing really tough investigative journalism as anyone else, it's not that we're not doing these stories, it's just that we're not really encountering privacy

ML: Can I just pursue that fact that you've never faced an action of privacy. Is that because in the editors office, as it were, you balance carefully the rights of the individual as against your interest in pursuing a story or that you just have never just had the appropriate circumstances?

AR: I suppose by and large a paper like the Guardian, but I would say that it's true of most other, I'm using broadsheets as a term to describe newspapers that are of different shapes, but you know what I mean, those kinds of papers are more interested in the public lives, public activities and public interests of public matters, and I can't think of a time when any of those papers have gone for somebody's' private life, in the first instance. Of course it becomes a dilemma once everyone else is writing about this stuff, and I should qualify what I said originally by saying of course we are covered by the injunctions that cover everyone else, so these dilemmas sometimes come up second hand but in terms of what we actually look after and look for and the way we use our reporters' time, I just don't think we write these kind of stories

ML Can I take us onto the issue of Libel now and the Trafigura case. Could you just give us a sort of short summary of the circumstances and the action that the Guardian took and what you faced in terms of injunctions?

AR Trafigura was a giant oil trading company I personally hadn't heard of until it started suing everybody under the sun and the case in question referred to its activities in the Côte d'Ivoire where it was accused of dumping a load of toxic material, and here I have to begin a new sentence, and a lot of people became ill. And the question was whether lots of people become ill because of the toxic dumping? And it was one of the biggest joint actions of people claiming injury and death with many thousands of people so it was a big serious public interest story. And we knew that Trafigura had commissioned a report, an internal report to see if there was a connection between these 2 things. And we knew eventually because we got hold of this report, it was called the Minton report, and this Minton report advised Trafigura that there was a connection. But this report had been suppressed and hadn't been declared in the accidents and personal injury. So we wanted to publish it, we thought it in the public interest to do so. And we were hit with a super injunction, not -- many of these injunctions are wrongly termed super injunctions, this was a super injunction -- saying not only can you not publish this but this court action is itself secret, and then when an MP heard about this and raised it in Commons we got an extraordinary letter from Carter-Ruck, acting for Trafigura, saying that we couldn't even report what had gone on in the Commons. So to me that was the most outrageous case of the use of a super injunction, a matter of clear and obvious public interest and something which had been raised in the Commons and the age-old right to report the Commons was now being threatened.

ML Now although the law of privacy doesn't impinge you say much, or at all, on the way the Guardian reports stories, would you accept that there should be a law of privacy which would affect you certainly second hand if you're reporting other stories which happened to have been featured in the tabloids?

AR Well I suppose it depends on what we're calling a law of privacy. I don't think I want to be in a position where I'm calling for the government to sit down and pass a new law. If you're saying there is a de facto, a law being developed by the judges because of what's in the Human Rights act which is based on the Human Rights Convention, I think I can't see any way round that, so I'm probably unusual in amongst my colleagues in thinking that the law is developing in a way that is inevitable and that the judges are, in difficult cases, are reaching mostly reasonable judgments on difficult matters.

ML There is sometimes said to be a problem that although judges are by and large reaching the right conclusions, never the less, the law of privacy is rather broadly sketched in the Human Rights Act, wouldn't it be better if parliament actually legislated to set out in detail, what the law was so it gained greater legitimacy perhaps in the eyes of some?

AR Well they could certainly try. I can't personally imagine what that law would look like. If there were certain categories of human behaviour that were going to be included to be ok to write about, would you not want to qualify that by saying, if it's a cabinet minister shagging it's alright, if it's a footballer shagging it's not already. I hope you can use shagging on radio 4. So you would get into nuances and areas of grey to do with the public interest that I think would be quite difficult to capture in a law and in a law that was simultaneously compatible with the convention, so my feeling is that the reason we don't get much progress on this front is that actually when people sit down and consider the nuts and bolts of how it's going to be constructed it's harder than it seems, unless you want to break with European convention and say that we don't agree there's such a thing as privacy

ML Somebody would have to decide what was in the public interest in a particular case and at the moment it would be the judges and probably even the judges if there were to be legislation, but I want to ask you about the role of the PCC, which has a complementary role or an alternative role, perhaps it could be bigger. What is the approach generally of editors to the PCC?

AR Well I think the PCC by and large is a useful organisation and I would rather have self regulation than statuary regulation, I can't imagine living in a country in which the press is licensed and I think it would be very difficult in a blogging era to work out who could be licensed as a journalist and who couldn't, so I think the PCC for all it's faults is probably a reasonable body to be there. I have all kinds of doubts about the way it's run, I think at the moment it's credibility is shot to pieces through the way that it's approached phone hacking but that's a different issue. But do you want a self-regulatory mechanism, yes. And at that point I think the conversation turns to whether it is set up to do regulation or whether it's really quite an effective sort of mediation body

ML Can I ask you one question which relates to your concern with the law of libel and the possible relationship that has with privacy. The Reynolds defence has developed which has gone some way to assist responsible journalism when you can't prove every single fact that's contained in a particular story. One of the features of that is that the courts generally speaking will have respect for a story where attempts had been made to verify the story by speaking to sources and those affected by it. In the case of privacy, in a case like the Max Mosley case, one of his complaints was that he wasn't given any prior notification which gave him a chance to take out an injunction or to go to the PCC in order to prevent it from being published whilst he established whether his privacy had been infringed. Do you think that some sort of provision would be sensible to prevent newspapers publishing stories unless they had given some prior notification to someone in the Max Mosley position?

AR Well that sounds like a fine principle and the problem in practice is we don't live in a country in which the courts have a completely robust view of injunctions pre-publication, so I think in America I think it's a complete no-no that anybody would try an gag a paper in advance, it would just be unthinkable, but in this country it happens, it happened to us in Trafigura, so if you go to the other side and say look we've got this document and we want your response to it before we publish it what happens is that they rush off to the courts and we're injuncted. It happened again to us with Barclays bank, we had some internal documents from Barclays bank which showed the internal strategising around tax avoidance, clear public interest, and Barclays bank rushed off to a judge and said hey judge the Guardians got this stuff on its website take it down,. So you're always living in this atmosphere of where if you try and play by the rules and do the decent thing the British courts are not going to be very protective of the press, even in cases like I've cited to you where it seems to me there's a clear public interest. So I think if we we're going to have any kind of change in the situation whereby newspapers were required to front up tthe subjects of what they were writing about, we'd have to have a more explicit understanding from the courts that they weren't going to be so trigger happy with pre-publication injunctions.

ML Just one question following it up, of course the listeners may not be entirely clear that although you can obtain an injunction, if you're the victim of injunction as it were, you can always apply to discharge the injunction or bury the injunction, it's not there for all time.

AR That's true but to quote the famous maxim news is a perishable commodity and also newspapers haven't got much money these days and so if you're caught, as you usually are, sometime between 9pm at night and 2 o'clock in the morning, and literally judges in their pyjamas are making ad hoc decisions, the Barclays one was about 1 o'clock in the morning and the judge I'm almost sure was in his pyjamas and just said yes just take it off and so suddenly the value of a piece of work that might have been going on for 3 months goes up in a puff of smoke and sure you can be on the other end of the phone trying to make that case at 1 o'clock in the morning and what they usually say is take it down and we'll meet again in the morning and we'll have a good discussion about it then, but by then it might have been published for about half an hour and the exclusivity of it is lost, and what might be £30,000-40,000 worth of journalistic time and work has gone up in smoke. So I think we just need some kind of discussion with the judges about this question of pre-publication relief.

HL You conjure up an amazing image of judges in their pyjamas not so much Rumpole of the Bailey as Rumpled in the bedroom. On the issue though that Max Mosley raises, about the fact that he had no idea that these stories were going to be published, it did raise in my mind the issue of checking the story. Is there not a certain logic to actually going to the subject of the story to check the story is actually correct? And in the BBC case they would have to go to the subject because they're obliged to have balance, there doesn't seem to be any restriction on newspapers...

AR Having said what I said, I think it's desirable, I think it's desirable that you should go to people and tell them what you're about to publish about them. I think it's desirable because it's fair and I think it's desirable because it's journalistically better, you might learn things that hadn't occurred to you, so I'm not fighting it as a principle. I'm just saying as the law stands I am fighting it because I've been caught too many times by judges who hand out injunctions even where it seems like rather serious subject matter. I think unless we can have some kind of discussion about the use of injunctions and about the circumstances in which newspapers would be prevented from publishing, I'm not very keen on making the concessions, even though I agree with you it is journalistically good.

HL The injunction though is pretty much a prerogative for the rich because it's not an easy or a cheap solution. How would the common man or woman deal with the kind of crisis that required access to a judge at 9 o'clock at night?

AR I think that's right and I suppose there's two answers to that, one would be the use of conditional fee arrangements, but how many people know about those and how many people would know where to find a solicitor and about the possibility that they wouldn't have to risk money up front? So again I think that does come back to the PCC and the useful role the PCC could play if it could achieve a position of greater credibility.

HL How would you give it that credibility?

AR Well as I say number one it has to work out what it's going to call itself, at the moment it flies under the banner of self regulation, so when you think self regulation you think the General Medical Council or the Bar Society or whatever body it is that now regulates solicitors, it's not the Law Society, it's called a legal something... anyway, that's what you think of these professional bodies who can investigate and uphold standards and I just think that the phone hacking thing has exposed, and the PCC are perfectly candid about this, they say yes we produced a feeble report on phone hacking because we don't have any investigatory powers, we don't have any money, what are we supposed to do faced by newspapers that are wilfully misleading us? And so if that's their attitude - and I have some sympathy with that - then they should stop claiming they're a regulator and just say well we can't deal with all that difficult stuff but we're a very useful mediator. So let's clear up for a start what the PCC is. If it wants to be a regulator then it ought to go to the newspaper and say we want some money from you because sometimes we're going to have to be forensic in our enquiries or we're going to have to demand that you come and give attention and hand over documents and so on and so forth, there are examples of that, OFCOM is one, the ITC which regulated the ITV, I can think of examples where regulators have managed to do those sort of enquiries, so set aside the regulation which I think is the sort of gaping hole in the credibility of the PCC at the moment, I think it does do quite a lot of useful work on the privacy front, I think there are cases which are unseen necessarily because it's about privacy where the PCC does make quiet phone calls and does stop stuff from appearing and does help cases of harassment. So I think if the PCC could clear up what it actually did then it would be in a better position, a more credible position, for people to go to it rather than the courts including people who couldn't afford to go to the courts.

HL What would be the catalyst for that to happen given that it is a, in adverted commas, self regulatory body, it is owned in effect by the newspaper industry, which doesn't exactly have a vested interest in beefing up the PCC, so how do you go about giving it that extra clout?

AR Well, I can think of three scenarios, the first scenario which I think is unlikely is that the press all get together and why don't we all do something about it, as you say the ownership of the PCC and the effective control of the PCC which two or three big newspaper groups aren't going to do that. So you either need the MPs to do something meaningful and we could discuss the problems about that, but it's a sort of last chance saloon moment, though when you see how David Mellor got wiped over by the tabloids, having said that I think it's a real problem about what MPs feel brave enough to say, because they'll think god I could be next. Or you just have to get to a point where the pain being caused by the courts is such that the newspapers finally say look we've got to establish a credible alternative because we're having absolutely hopeless time in front of these judges. So I can see a sort of variety of ways in which the PCC might move but I think it's unlikely to do so out of the blue and voluntarily.

HL You raised an interesting issue that Hugh Grant raised with us when he came and spoke to us and that is about the fear experienced by politicians in dealing with the strength, particularly, of the tabloid newspapers, and through the David Mellor incident onwards, there has been a tendency of governments of whatever colour to back away from actually taking on the press. It's all about power isn't it, and has power not become a little bit unbalanced, perhaps a little irresponsible?

AR Well I think, yes, I think it's one of the big worrying things in the sort of democratic, civic arrangements we have at the moment and it's all exemplified by phone hacking, the phone hacking thing is such a huge thing because what you saw there was the regulator going onto its back and sticking its legs in the air and giving this hopeless pose of what can we do? You had the police, for reasons that have never been explained, saying well we don't want to look at this and there are reports of internal conversations within the police saying well why would we want to take on the biggest newspaper group? And you had MPs who stood up, one or two of them, yes we were intimidated, So you've got MPs, who are the people who are supposed to immune from all these kind of pressures secretly thinking do I really want to get involved in this because some aspect of my private live might be turned over and how many of us are pure enough to withstand that kind of scrutiny that somebody is prepared to look into your whole life. So I think if you've got a situation where police regulator and parliament are all a bit frightened of this it's all a bit unhealthy.

HL Often the defence in these cases of phone hacking, and we've heard some pretty hair raising stories of medical records hacked, bank accounts hacked, often we've heard the defence it's in the public interest. How do you define the public interest?

AR I'm happy to go with the PCC.

HL It's very wide ranging?

AR Yes, quite, it has a sort of catch all phrase about sort of public interests and freedom of expression itself and that's we all sign up to so officially every journalist in Britain who works for a paper or magazine regulated by the PCC abides by that definition and I think we can all try and think with it and try and think of something better but it's a workable definition and I think that's the problem with a lot of these privacy cases at the moment that judges look at the PCC definition of public interest and say well I can't see that it meets your own test. This is why I think that it's pretty difficult to imagine that MPs would come up with something that was more permissive than the industry's own code, this is our code, we drew it up as journalists, and we say we're happy with it so why would MPs say, oh journalists are being rather hard on themselves we ought to make life easier for them. So I think there is a definition of Public Interest, it's a pretty good one and probably ought to get on with that.

HL You look at a fairly wide background in the newspaper industry, you look at newspapers abroad and how the newspapers function abroad. What do you think of the use of the law of privacy in France?

AR I don't really know enough about it.

HL In that kind of environment where privacy to a very large extent is absolute, and certainly you have the allegations that are made against Dominique Strauss-Kahn for example in New York which comes as a sort of bolt out of the blue to the French public. Do you think Britain could operate in that, or are we so hooked on the sort of sea-side view of the world?

AR Well, I think the way British courts are going is essentially to say is that things done by consenting adults in private are private, legal things done by consenting adults are private and I would be surprised if the French privacy law was that different from that so if Dominique Strauss-Kahn has an extra marital affair the French press would ignore that. I think if he actually harassed female journalists as he's alleged to have done or to have done things without consent or things that weren't legal i.e. involving force I can't believe that the French press actually wouldn't have covered that or that there would be any privacy laws that would have prevented them from doing so. But I don't know enough about the French privacy laws.

ML Going back to the issue of phone hacking that raises questions about both the power of the press but also the behaviour and ethics of the press, many have said that actually this is a pronounced weakness of the PCC that it isn't taking any action to tackle unethical behaviour by the press. What's your view on that?

AR Well I think there's some fairness in that. I think the PCC was extraordinarily slow to get involved in these allegations. They first surfaced with the so called motor man affair, which was another private detective who was blagging getting phone numbers and so forth, and we knew there were something like 300 named journalists in his records. And I at the time was on the Press Complaints Code Committee, so that's not the body that adjudicates these complaints, it just draws up the code, and I could see that nobody really wanted to get into this, because it affected everybody, so it was sort of turkeys and Christmas, why would you want to get into that? And then the whole phone hacking thing which started, or really burst into life again in July 2009, by November 2009 the PCC had written this feeble report saying oh we've written to the editor, he says there's nothing wrong, we can't find any evidence that we were mislead, which was completely untrue. They were saying things that not even the News of the World would have claimed about their behaviour so it was a most extraordinary moment. Belatedly now they've appointed a 3 person commission to try and find out where they went wrong. So it's really important how they deal with that. I think to another example where the Guardian, about 10 years ago when ITV still had the ITC as its regulator and we published the story saying that a particular programme had been made up by Carlton television, it had used fake scenes. And what happened there was that Carlton got in Michael Beloff QC, a leading silk, who came in with a three-person team of investigators and they produced a report that then went back to the ITC and there was a two million pound fine, and there is somebody in particular who know very well about that case, and that is David Cameron, because at that time he was Head of Corporate Relations for Carlton TV. So David the Prime Minister knows all about how a regulator can have real teeth and real investigatory powers and I think the PCC has to try and get some of that mechanism in, otherwise it's simply not credible.

ML Although you've in your earlier evidence suggested that you would not be in favour of public regulation, your answers seem to suggest that that is the inevitable outcome here, concentrating the PCC, or the desirable outcome, concentrating the PCC on the job that it appears to do well and reinforcing it with some statutory regulation around these sorts of behaviours.

AR I think I would need some persuading, and maybe you could think of good arguments that I am missing.

ML Let me ask you a question. In your mind is it right that broadcasters are subject to regulation over harm and offence by OFCOM but there is no such regulation for the newspapers?

AR Yes. I am perfectly happy with the dual system of regulation we've got in this country and I think it's a good one and I wouldn't want to tinker with that. So I think one of the good things about living in this country is that you have a very regulated broadcast media and the BBC which has all kinds of obligations in this kind of tent peg in the ground. So you can then have a completely different tradition in the press which grows up through the 18th century tradition of scandal sheets and polemical this and polemical that, and I think having those two different traditions regulated in different ways side by side is quite good. It's the reverse if you like of America where you have all the newspapers, the New York Times really likes to pretend it's the BBC, it's very impartial and elevated and in good taste, and then you have Fox TV which is the broadcaster which is like the Sun in this country. So my instinct is to keep these two systems and one is about impartiality and accuracy and taste and all the things you mentioned and the other has more freedom in terms of opinions. And as I say the moment you say the state has got to start licensing who could be a journalist I think all you'll get is a sort of flight of Twitter and Facebook and blogging of people who say, well I'm not going to submit to that. It's one of those things you don't want to push it too hard.

ML And we are talking about the boundaries of acceptable behaviours. What's the code that the Guardian works by Alan? Do you pay for information and do you pay for information that's been obtained by criminal means? What's the guideline that you use on these things?

AR I can't think of, I always try to be slightly cautious here because somebody will always say there was a case, but I can't think of a case where we paid for information. That is the sort of rule of thumb, we don't, and people want money we say we're sorry but we don't pay, that's partly because we're poor but it's partly because I think quite often paying for information in a way taints the information. And the kind of information that we're looking after, people generally want to give it to us because they feel outraged or disturbed about something rather than wanting to get richer. So, no, we don't pay.

ML Can we just deal with the economic circumstances of the press for a moment? The editor of the Daily Mail a couple of years back made a comment that was perceived to indicate that basically the publishing of scandals is essential to the survival and health of the popular press in this country. Is that the case?

AR Well, I think to some extent that is their business model. It is a relatively recent business model if you look at the sort of hundred year history of the popular press, if you looked at the News of the World up to the time that Rupert Murdoch bought it, it was all about scandalous court reporting of smutty court cases. It didn't do much of this active investigation of people's private lives. But I think it is the case that in the last 30 or 40 years that has become part of the business model of the tabloids and that is obviously very threatened by what's been going on in the courts recently. So the argument I suppose is whether if you looked at the average copy of the News of the World in amongst all the shagging footballers you would find stuff that was in the public interest, so that they could actually say we have to do the shagging footballers in order to cover the threat to the environment and people wouldn't read about the threat to the environment and buy the News of the World, so I don't want to make that judgement about whether the News of the World answers that description. I think Paul Dacre could reasonably say that that's what the Daily Mail looks like, that it's a more sensationalist paper in some ways but also engages with British politics and things and there's a judgement they all quote by Harry Woolf, Lord Woolf, who said something like unless newspapers can be profitable then you're not going to have newspapers. Generally the press is not in a good way and it's particularly hitting the local press and it's all to do with digital disruption. The money is going out of newspapers into digital. The advertising is, as people cut back on reporting because they're losing money, the papers become less interesting and you get into a spiral of decline. You can see in America where newspapers are just dying. So we're not these big fat companies that we were once.

EF Alan, can I ask you a bit about parliamentary privilege. We've had some recent instances of parliamentarians effectively breaking injunctions under the cloak of parliamentary privilege, and Zac Goldsmith, an MP, said he didn't approve of that. It may be something that parliament itself is going to look at. I think in fact the Trafigura case has some relevance in terms of parliamentary questions and use of the media. What do you think about what parliamentarians ought to be doing in these circumstances?

AR I think in general it's undesirable for MPs to start trampling in defiance of court orders because I think the unwritten British constitution requires that kind of separation of forces where the courts don't meddle with parliament and vice versa. I suppose it comes down to our old friend the public interest. So I think in the Trafigura case I don't think anyone now thinks that really it was in the public interest for this Minton report to be suppressed. Given that we had it why shouldn't a newspaper publish what it has if it's in the public interest? So I would be happy to rest on the public interest. And again if it's just a shagging footballer I can't see that that really justifies trying to overturn the constitutional arrangements between courts and parliament. It seems to me a frivolous way to behave.

EF I suppose somebody has to decide, a parliamentarian or not, what they're doing is in the public interest or not?

AR Yes, it's clearly the right of MPs to do that. I don't think anyone contested that he had the right to do it. But when he appeared on Newsnight that evening and tried to explain why he did it he came out with all kinds of bizarre things about he was worried about people being locked away in secret jails, and I've never heard about people being jailed in secret. So I thought it was all a bit fanciful, so I wasn't really impressed by his arguments.

HL You've mentioned social media a couple of times and digital media and new media as it's collectively called, and you used Twitter yourself at the height of Trafigura. How much is that changing the editorial pressure on newspapers as distinct from the financial pressure on newspapers?

AR Well it's an extraordinary thing to it. And three years ago when it started I couldn't imagine that it had anything to do with newspapers. And it was one of those things where you think, oh god life's too short and I'm not going to bother with Twitter. And of course now I think completely differently I think it's absolutely tanks on our lawn. Not in an aggressive sense but it is absolutely, it does what we do in many respects, it does what we do better than we do it. It's like all these things, it's like Google and Facebook, it's a frenemy, a horrible word but it's friend and enemy. But it can be used, I mean I used it in the Trafigura case, I just tweeted saying you know there's something we can't tell you about in the Guardian for reasons we can't tell you about the subject, we can't tell you, I mean it was one of those sort of meat tweets, and it set the Twittersphere off and within a couple of hours they had found out what I was talking about. I'm not going to claim to be holier than anybody else in this, but I think it, I think, the point that the newspapers were making at the height at the time when Twitter was naming all the shagging footballers, I think the argument that says that's unfair, Twitter's allowed to that and we're not. It's quite a dangerous argument because I think actually newspapers ought to be saying we live in a different space, we are professionals bound to a professional code of ethics and standards and that's the space we occupy. So I don't think we should be chasing Twitter and saying there's this unregulated space over there doing all these naming of people and we must be taken to the same level as Twitter because if you believe that then you'd have to abolish the Press Complaints Commission. There's no point of having a code of conduct and a public interest definition if you're going to say actually it doesn't matter because we want to do what Twitter does. So I think there needs to be a bit of material reflected in the press about how they make that social media argument.

HL But if take your argument forward about the media is in a different space and a higher ethical level, is that not rather defeated by the activities that have been proven in a court of law in some cases in relation to how information is gathered and the suspicion that more newspapers maybe involved in that?

AR Absolutely. I think that's why phone hacking is terribly damaging for everyone because if that's the perception of the press that actually it's a sort of bandit country without any thought or control, because that's the argument, that we didn't know what was going on. So I mean it's either systemised bad behaviour which people knew was going on or these newspapers were completely out of control because nobody knew what was going on, but either is terrible. What does that say about our industry? And why aren't the elders of the press saying, this is a crisis moment we must all get together and they're not doing that. And that's a very dangerous moment for the press. And I thought the weakness of the PCC response to phone hacking was a very dangerous moment for the press simply because it allows everyone to say well actually, the PCC is useless, you're behaving so badly so therefore we need firmer controls.

HL There are occasional gatherings of social and otherwise of newspapers editors. What's the chat like about things like the difficulties that News Group have got themselves into?

AR Well, I don't know because I do see some of my colleagues but it's not a very clubby industry really. It's probably the most competitive, in the world. It's a very small country but it's got 10 national newspapers. There's not many countries support that kind of intensity of the press. And there tends to be a division between up-market and down-market, if I can use those loaded terms and there are further sort of divisions, you've got 4 newspapers in the News International market so they all feel outraged if you say bad about them. And so it's not a very cohesive industry. And the reality is the Guardian by writing about phone hacking has broken the unwritten rule that dog doesn't eat dog. And instead of staying god this is a scandal that we all must address, I think sometimes there's a lot of oh why doesn't the Guardian just shut up about this, it's washing dirty linen in public. So that's a long way of saying there isn't really a sort of forum of editors who get together and discuss issues like this.

ML I can't help but ask this question of you Alan. And it's back to the economic plight of the newspapers, that might lead you to the conclusion that we should as a nation take steps to divert resources from suit of scandal to the pursuit of proper investigative journalism, if we're interested in the genuine freedom of the press.

AR Well everyone flinches from this argument because anything that looks like a subsidy for news is never going to be a popular cause, but there are things that are not going to be covered in future, and that aren't being covered already because there won't be the money to do it and the market is not going to provide. One of them is the courts. It used to be standard for local newspapers to cover magistrate's courts and crown court and high court and appeals. The court system of Britain used to be covered systematically and it isn't now because it's simply to expensive. I know a lot of the judges are worried about this. They like the idea of justice being seen to be done. So it's a question for society if we think we would like to know what's going on in our courts, and the most basic argument might be we want to know who the burglars are and we want to see who's being locked up and where the crimes are being committed. So, if you want people to be shamed, in the shaming thing, of seeing your name in the papers. But that's going to cost money and then papers aren't going to be able to do it. So there's an argument to be had about who's going to pay for that and how it's going to be done and move on upwards through the councils and the council committees. Do you want to know what's going on in your local council because bloggers are not going to do that on a systematic basis? And so I think at some point we will have an argument in this country about whether there should be some sort of funding for that kind of reporting. At that point newspapers are going to have to say well look what we do is in the public interest. And at maybe at that point we can get away from this obsession with footballers sex lives. Because we're never going to convince the public that that is really in the public interest.

ML I must say I had in mind a different route, I wasn't thinking subsidies. I was thinking that if there is so much public expenditure in the economy on newspapers, then regulatory activity which discourages it being diverted into chasing philandering footballers, one would expect favours the journalism.....

AR: Yes, or some kind of encouragement rather than discouragement. Would we ever reach the stage where you could almost argue that provision of news was a kind of utility or could be like a charity. But have some sort of tax exemption. I personally think that's a rather good idea. Speaking as an editor of a paper that's losing quite considerable sums of money at the moment because we've lost a lot of advertising in print. I think that what the Guardian does is deserving of some kind of encouragement, particularly in a world in which we're up against international players who don't pay much tax in this country, including Google. So I think that would be a useful thing to discuss at some point and I guess at that point somebody would have to read the Guardian and say but you're not doing enough of this public interest stuff so you would have to have some kind of content regulator. Maybe that's the trade off that we'll be heading for.

AR: Can I talk about my chart? This chart is really just about these privacy injunctions that have been granted recently. Not many of which are super injunctions and I think the striking thing is when you read these judgments you get a very different view of these cases from how they're reported. And there are two striking things about the cases and there are about 30 that have been tabulated here that we're going to put on the Guardian website. And the first is whether the order is actually opposed, so you would think wouldn't you, from the reporting when you see all these headlines saying paper gagged, Sun gagged, Mail gagged, whatever, judge gags papers, the paper has gone along to say please don't gag us. But actually I can only find about 20% of the cases where anybody has actually gone along and argued the opposite. And the judges have now started commenting on it. They start saying isn't it odd that I'm being asked to judge on this case and the newspapers hear us in court and they're not even opposing it and you would never guess this from the reporting. And Mr Justice Tugendhat recently said I suspect what this is all about is the newspaper just wants the headline to say I've been gagged. If you're not going to consent to the order and you're not going to oppose the order then what on earth are you doing here? So there's this thing that newspapers aren't opposing it and if you want to know why they aren't look at this next column which is whether anybody's argued the public interest and I can only find 4 cases out of 32 where the newspapers argued the public interest. Now this is crucial because of what the newspapers did when the Human Rights Act was passed, and this is a bit of legislative history, but when the Human Rights Act came in all the newspapers said, oh this is terrible we're going to get all this privacy stuff, we don't want that. And they got inserted into the act, at the last minute, section 12 of the Human Rights Act, which said you've got to look at our PCC code of conduct before you grant any injunctions. And this was an attempt to say look we've got this wonderful thing called the PCC and you've got to pay attention to it before you go around... so this code was put in, this bit was put in at the request of the newspapers saying please look at the PCC. So that's what the judges do and in all these cases if you read all these judgments there always comes a part of the judgment that says I now look at the PCC code and what it says about public interest to see if there's any public interest, and is there anybody here from the newspaper that wants to argue public interest. And in the overwhelming number of cases the newspapers don't. And one of the barristers referred to this as the laughter in court test. Can you with a straight face say that this account of this footballer misbehaving is in the public interest? So they don't argue the public interest so the judges then say, look, in most cases they're not being opposed and in most cases the thing that the newspapers insisted we should look at, there's no public interest. They're not even arguing that. So that's why most of these cases are really bad cases. So I think again, in terms of the sort of overall perception of the press all these cases which the newspapers aren't actually opposing, and where they concede there's no public interest, why we would want to mount a gigantic campaign to say oh we're being terribly badly treated, we've got to try and change the law. It would be better to wait until there are some rather better cases.

ML Are you going to publish this?

AR We are.

ML In the very near future.

AR Yes

ML Perhaps we can put a link through to the PM website. It's a very interesting piece of additional information on one of the issues that we're exploring.

ML Alan as we're drawing to a close do you want the opportunity just to speak as it were to the listener to sort of summarise your views on the current balance of interest between press freedom and rights of the individual.

AR Well, my overwhelming anxiety is about libel which is, people often, often rich people, people often not even living in this country, but quite often at local level too, use to silence the press on matters of public interest. And I think that's really what needs addressing. And it's got to the state now where most local papers in this country won't even contest a case because they can't afford to. So it's become a kind of rich person's law where you can buy silence in this country on matters of public interest through the use of libel laws and I think that's very worrying. The problem is, which I acknowledge if you go to MPs and say please give the press better protection, they're bound to say what for, what do you want this protection for. Unless you can look them in the eyes and say we need it in order to write about the public activities of public figures in a way that we can all agree then we're not going to get that protection. And that is where libel and privacy intersect and I'm perfectly prepared to be worried about privacy, I haven't been so far, but I think we need a discussion about privacy that takes in the sort of wider effect that these arguments about privacy have in stopping us getting the laws that is going to protect the public interest activities of people who are doing investigations about much more serious things. And in the end it is all one piece of string and the harder you pull on one end of it I think the more you're damaging the ability of journalists who want to do serious things, to do them.

ML Thank you very much. It's been a very helpful session.

AR Thank you


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