Privacy Commission Day 5, Witness 2: John Kampfner

The PM Privacy Commission spoke to John Kampfner, Chief Executive of Index on Censorship, on Wednesday June 22, 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 Well let me let me welcome the next witness, John Kampfner, formerly Editor of The New Statesman and now Chief Executive of the Index on Censorship, John thanks for joining us. Can I invite you just to introduce yourself and say a little about the Index on Censorship and perhaps say a little bit about your prior interest in this issue of balancing issues of privacy against freedom of expression?

JK Well thank you, and thank you very much for inviting me here today. As far as I'm concerned I took over at Index on Censorship two and half years ago. I regard it, for me it's a move into the NGO world, into the world of advocacy, but where journalism both having seen it practiced and also hopefully still retaining various elements of the craft of it, stand me in good stead. So we are an organisation, next year we will celebrate our 40th anniversary. We were born out of the cold war and it was very much a place for dissidents in the Soviet Bloc to publish, then very much on paper and the old ways of hand carrying information and photocopies and everything else. Some of our alumni are people like Vaclav Havel and other besides, and where we are now is dealing with, as we've always done, what I call the black and white cases of egregious censorship and chills on free speech, that is to put it bluntly. Journalists, activists in authoritarian countries being harassed, being killed, being imprisoned and we fight their corner and publicise their plight from places such as Burma, Belarus, Azerbaijan, Russia, China, Zimbabwe and many other places besides. But we're also, particularly under my aegis, increasingly involved in what I call the shades of gray. These are where free expression which we regard, and obviously I'll develop this point, as an inalienable right comes up against other competing rights, other competing obligations, and other societal challenges, particularly in Western countries, and this speaking personally is a fascinating intellectual challenge. How do you meet these challenges? So to sum up both as a journalist, past and present, and running the countries main free expression organisation, I regard the issues surrounding the privacy debate now, not just the specific debate around celebrities, tabloids and injunctions, super injunctions etc, but also the broader privacy debate, such as the ownership of data, the ownership of information, the privacy of your own space whether it be Google maps or these other areas, which I know are not under your area, but we see privacy very much in the round. So we've engaged very fully on this, and obviously I'll develop our position on this, but very much from the position of defending the right of free expression while acknowledging the other rights such as the article 8 right to privacy which we regard as a very important right too.

ML What about the health of current arrangements? Do you believe that the right to free expression is systematically being challenged over recent years?

JK We are very concerned about the state of free expression, manifested in a number of ways. I think our single biggest achievement in recent years, and possibly across the NGO sector in all areas as being our work on reforming our libel laws. Our libel reform campaign, along with two fellow organisations, English Pen and an organisation called Sense about Science, which lobbies for scientific free expression, doctors and scientists etc. led, quite clearly, to the coalition government publishing its draft Defamation Bill. When we started the work on making it clear to politicians the extent of the inadequacy of our libel provisions, the extent to which they chill speech, they were genuinely surprised, I remember Jack Straw, the then Justice Secretary, really wondering, not just to us but out loud to the DCMS committee, really what the problem was. But by the end of our work, which was public but it was at least as much private, we persuaded all 3 main parties to put libel reform as integral to their manifesto commitments and as soon as the new government was formed, and we would have done it whoever had formed the government was, we persuaded them to publish the draft Defamation Bill, which we think is a significant improvement on what has come before but we are lobbying through the joint committee that's looking at it and through the MOJ working party for improvements in that bill. So this privacy discussion that is being had now, we see as much as in the context of quite clearly egregious cases of abuse of privacy and media standards which I'm happy to discuss in a very forthright manner, but we also see it in a context of, in our view, free expression not being given the status that any free society should give it. In an ideal world we would love a First Amendment US style. We're realistic to realise that is not likely to come in the near future. But both in legal judgements, some of them libel judgements, which I can talk you through, in some of the more recent privacy judgement, and in other government and broader decisions we very much remain of the view that with some notable exceptions there is a perception that free expression is really quite a tradable commodity. It's as much of an inconvenience as is it is a right and that we regard as very unhealthy.

ML In a recent article, I think in the Independent, you spoke of the role of class and age in the battle of the right to know. What did you mean by that?

JK There is a sense now that, I would emphasise the age factor more than anything else, and obviously we can come to the vexed question of social media and particularly Twitter, there is a sense now that we have some very difficult competing forces. We have a sense of authority, particularly British authority, very suspicious of releasing information, jealously guarding information, and at the same time we have manifested, largely but not exclusively through a younger generation, almost a sort of neo-anarchic sense of anything goes, just get it out there and let's talk about it. Both of these are quite unhealthy extremes. And we would like to play our part in navigating that extreme. Just to emphasise my first point, an anecdote that I used, and that I used in my book, Freedom for Sale, I was talking to a old friend who used to be a political journalist when I was a political journalist at the lobby, he went on the be director of communication of a government department. This was right in the, I think it was towards the latter end of Tony Blair's first term, and that was one of those classic weeks of tabloid, well all newspaper headlines, screaming headlines, worst week yet for government, crisis, crisis etc. And I had a drink with him, he'd only been in the job a week or so and I said god what must it be like for you, tin hats and you know, very difficult for you. And he said you have no idea. I said what do you mean? He said what really shocked me going from one side of the fence to the other is how little journalists ever find out. You know, on a bad day for us, us being government, you probably find out 2% of what's come across my desk. And I checked that with other people and it's absolutely, this idea of, leaving aside for one second, which obviously you'll want to return to, tabloids, phone hacking, egregious abuse of media rights in order to go fishing for salacious material, but the idea that in the other part of the media, which holding truth to power, which is finding out, on behalf of the public, not on behalf of the profession, what is being decided in it's name, far from being a media, quote, out of control, or being, to use Tony Blair's term, feral, it is actually in our opinion, quite a pliant media, a media that finds out far too little and economic forces are now making an already bad job even worse by militating for economic reasons against investigative journalism because it is so hard to devote teams to find out and to spend six months eking out information. So a media that finds out too little contributes enormously to a democratic deficit.

ML I think many will accept that John, but going back to, you touched on it yourself, within a single pond there are different types of behaviours, you tend to speak for, and indeed in your own words from that same article, talk about free expression is about investigation, about challenging power and not about prurience or hounding the vulnerable. Much of the evidence we've got suggests that the focus, in at least part of the press, are in those latter areas

JK And if you read a piece, one of the most important pieces in that privacy issue, which has since been reproduced in the Sunday Times and elsewhere by Brian Cathcart, sorry somewhere else, has been reproduced in other peoples blogs he absolutely rails against sharp practice by people he calls not journalists, in other words these effectively thieves, I mean these effectively crooks, for using methods that are either actually criminal or border line criminal. To emphasise any advocate of free expression absolutely demands at the same time high media standards, we, and I in the Guardian, shortly after the DCMS select committee published its report in March 2010, I wrote a piece in the Guardian praising it's report. We thought it was balanced, it was fair minded, and it focused on the three main areas, libel reform, where it took broadly our position that our laws were woefully inadequate and dangerous, it took a view that as you know was raising questions about privacy and it took a view very strongly about poor media standards. So we are not in any way, no sensible advocate of free expression endorses the use of criminal fishing expeditions or unethical fishing expeditions and we don't see that as a legitimate form of journalism or of free expression.

ML Now we're focussing on privacy in the light of the recent furore about super injunctions and footballers gaining them, in circumstances that haven't always been quite clear. Do you think the present law of privacy is actually preventing serious journalism of the sort that you've discussed being undertaken?

JK The present environment in which investigative journalism is being, in which one seeks to hold truth to power, militates against investigative journalism, therefore I would not isolate the privacy law from the other panoply of laws that work against an open society and strong and vigorous journalism. So therefore in isolation I can't answer that question with a yes or a no. We, one could through all manner of legal judgements and other decisions, but the environment in which we think a number of privacy judgements have been made have been made from a perspective in the judiciary that journalism is just a pain, it's a pain in the butt. Let's do whatever we can to stop these creatures from being out of control. In other words everybody is tarred with the same brush. So, and if you look at the, we're certainly not against the Human Rights Act or the incorporation of the convention into British law, but if you look at the early privacy judgements in the period, pretty much until the Princess Caroline judgement, they, starting off from Lord Hoffman onwards, they took, in our view a far more balanced approach between the competing rights of free expression and privacy than have many, not all, but many of the subsequent judgements. And that's on the judgements, that's not even on the questions of super injunctions or anonymised injunctions. And if I can just give my view on those? I can see, there are possible absolutely occasional, one in a million, reasons for a super injunction, this could be around mental health issues, around personal danger issues or whatever else, where the mere fact that an injunction has been sought would actually imperil somebody's safety. So I would never, I would not say never, there may well be a provision. The bar for that would have to be extremely high, rigorously monitored, rigorously revisited, on a weekly, monthly basis, whatever, to ensure that just those very extreme reasons for having that super injunction continue to apply. And similarly, although the bar possibly a little bit lower, on anonymised injunctions too. Now an ordinary injunction, say for example, I find out on a Friday evening, not that they would because I'm not interesting enough, a tabloid finds out something I've been up to and I find out they're about to run a story, it's perfectly within my rights to apply for an injunction, and I would work from the assumption that the judge would apply that injunction late on a Friday night or a Saturday night because nobody's had any chance to look at the issues in the round and in a calm way so I think that that's perfectly right and proper. The judge then says come back Monday morning 9 o'clock, both sides, the newspaper and plaintiff, with your information, with your arguments, and we'll take a consideration about whether or not your injunction should stand. If there is a good reason, and we're coming to the issues of criteria for privacy and public interest in a second, if there is a good reason why your injunction so stand, so be it, let that injunction stand, the public has no right to know about this particular activity you have been involved with. I see no reason why that injunction is to be secret though, or anonymised. I, you know, Mr Smith, took out an injunction in the court and that injunction was granted Monday morning mid day. People know that I have taken out that injunction. That is an open society at the same time the information that is being, that they wish to publish about me, for legitimate reasons of privacy does not enter the public domain. I think that's an entirely right and proper way of carrying on.

ML Does it follow from what you've just said that you think that you should have at least the opportunity to seek an injunction, albeit as you say not anonymised and certainly not a super injunction, before the newspaper actually publishes something that may invade your privacy.

JK Well we at Index, along with the government and other organisations, fought Mr Mosley in Strasbourg. We were one of his opponents to his tort and we were pleased that not only did the court find against him, and I don't say this in a personal way, I've done a lot of TV and Radio things with him, and he's coming to our event next week etc, and I get on with him personally very well, but we thought his application was misguided, was dangerous and we were very pleased that not only did the court reject it but it rejected it in very forceful terms.... you're shaking your head.

ML Yes, but never mind

JK Anyway, and I was, there was one fact I didn't avail myself of before I came in but I'll check this for you, the countries that have prior notification are along the lines of Ukraine, Russia, Bulgaria, Romania, I'll check this because my facts may be wrong on this, but there are 3 or 4 countries in the former Soviet and Warsaw pact block, some of them emerging democracies, some of them are not even trying to be, that have such prior notification obligations. No Western countries, even those with stronger privacy rules like France, have such a requirement. So as a statutory right we would regard that as deleterious to investigative journalism. You only need to work that through, I mean most good journalists do, if they think it's right for the story, they do get in touch with organisations if they're writing a piece about it. But there may well be times when doing that would prevent publication of a legitimate story.

ML So someone in Max Mosley's position, as it were, has to suffer for the benefit of proper investigative journalism in other contexts, is that what you're saying?

JK Well if you recall Max Mosley's first action against the News of the World was libel, they libelled him, they got the facts wrong. They accused him, they inferred Nazi predilections, by getting their facts wrong, and when you get a chance to read Eadys interview in our magazine, Eady said that if that fact had been right in fact, rather than, then it would have been an entirely legitimate story to run. It would have been in the public interest according to him. Therefore, the issue, privacy was a concomitant of that but the issue that he correctly took the newspaper to court on and won on was getting its facts wrong and therefore impugning his reputation, which we have no problem with. Because it was a clear cut libel, even in libel reform, even in the new laws that are being worked through by government, that would still be a clear libel. And he suffered that libel and he was right to seek redress. But had that story been true then according to our, one of our two senior judges in this area of libel and privacy, it would have been an issue of public interest.

ML There's an overlap often between libel and privacy but in that case the public interest case wasn't satisfied and...

JK Well the public interest was not satisfied because it was wrong, the story was, all that I'm saying is the story was wrong ...

ML On the facts

JK On the facts, absolutely. So we have no issue with that. But on the narrow point it doesn't, the first stage of that story is not relevant to privacy.

ML But he didn't prevent the details coming out as the judge ultimately found, in a way that invaded his privacy.

JK Sorry I'm not with you

ML Well the story came out in the course of the publication and then once again in the court and he was left with a remedy in damages. Do you think that was adequate?

JK I don't think it's adequate and nor am I saying, there is no perfect solution to this problem. We are all dealing with shades of grey, we're all dealing with balancing acts. I would like there to be a situation in which, and I will set out if requested what I believe to be the legitimate areas of privacy and the legitimate areas of public interest, with are not a million miles away from where the current reading is. But you are never going to have a situation in which you meet these competing needs all the time. I would rather err on the side of a media that is a little bit overly troublesome than one that is pliant. And one that is too frightened of reporting anything for fear of what might happen. Let me give you two examples which I cited, I don't know if you were given this as part of your briefing notes. It was a lead piece I wrote for Media Guardian on privacy on the 16th May, and I cite two examples. The first was, and these go right to the heart of what you might call sexual privacy issues. The first was the US democratic candidate, John Edwards and his affair at a time when his wife was suffering from cancer, I can't remember the exact chronology but around that time. The mainstream US media applied its own self restraint on the issue and nothing was published until a gossip website published, and they kind of felt they had cover and they published as a result. The other was the situation in France which was the quite acrimonious break up of the marriage between the two most prominent socialist candidates, Segolene Royal and Francois Hollande, both of whom were vying for the mantle of being the socialist candidate for the presidency and also for leadership of the party, two different jobs. I defy anybody to say to me that these two stories were not in the public interest. This was not about a footballer and some glamour model. This was about two sets of people who were vying for the leadership of two extremely important countries and whose private lives directly impinged upon their public reputations, their public performance, their public trustworthiness and credibility. I would not like to be in the situation, such as is frequently the case in France, where stories of legitimate public interest, François Mitterrand being another, Jacques Chirac being another, are not reported. That is a more dangerous, while I accept that there is no such thing as the perfect solution to this problem that in my opinion, is a much more dangerous place to be, than the one that we are in now. One that never the less, I would completely accept, is in need of improvement.

ML You are reasonably happy with the libel reform bill, although I apprehend that you think there should be some improvements.....

JK Yes, the corporate and ISPs..

ML You're not altogether happy with the way the courts have been approaching the issue of privacy. Do you think that it would be helpful if parliament set out in more detail what the law should be in respect of privacy?

JK We welcome the joint committee, that the Lords and the Commons look into this. I think this is good development. And yes I've written that I do think that this is an area where politicians should not fear to tread. What is in my view, required is a commission that would produce hopefully, a body of work that has credibility, that has very strong credibility, that takes soundings from all sides, and that at the end of it produces some set of guidelines. Ultimately it is for judges, and so many of these cases are case by case judgements, they are very fine judgements. In our view as long as our judges are mindful of the absolutely inviolable requirement to a free and open society through free expression while at the same time as they are already mindful of the article 8 requirement to privacy, then a new body of guidelines helping them navigate through that, and helping them navigate through really what the human rights act is there to do, and don't forget the human rights act is interpreted really quite differently from jurisdiction to jurisdiction. The French interpretation is pretty much that individuals have a blanket copyright over their public image. So French television for example, if it's doing a news package on, I don't know, global warming or something, and they take a global shot that identify faces of people lying on the beach, they can get into trouble for that if any single individual objects to their privacy having been invaded. This was the heart of the Princess Caroline judgement, which we regard as having pretty much set our jurisprudence on a wrong path, as I say, before that, some of the judgement which I can go through with you, based on exactly the same body of law, the Human Rights Act were really quite balanced, but from that point, there appeared to be, and there appears still to be in the case of our judges a presumption that everything is private unless it is deemed to be public. In our view it should be the other way round.

ML So it's really, it's a question of presumptions here isn't it? You think the presumption favours what might be termed the article 10 consideration and you think perhaps the French approach and the recent approach of judges is to presume somewhat in favour of the article 8 approach?

JK Yes, we think a fair, we wouldn't want to replace one bias with another bias. We think it is strongly now our body of privacy law has been sort of, I can't think of the right sort of, Frenchified, Francofied, and there is very much now the balance is very much tipped towards article 8. We would like there to be an equal playing field.

HL How much has your case been damaged by poor media standards?

JK All the time. All the time. We would feel much, to answer your broad question in a narrow way, we would feel free expression would be hugely helped by having a PCC that enforced self regulation in a way that carried public, far greater public credibility than it does now.

HL How would they do that?

JK Well, some of their recent activity as I know Stephen Abell, one of your witnesses, and we've discussed this with others, with them and we've talked to them quite a lot and I think they would like us to be more openly endorsing their approach than we do. Some of their recent approaches, their softly, softly settling issues behind the scenes, getting stuff withdrawn, getting stuff not published, and it's hard for them because it's very hard to prove negatives to the public to say look at all these things we didn't get published, it's very hard to do that. So we have sympathy with them and we think that they are, they are certainly trying within their own framework to enforce their judgements more strongly. There is a perception problem, and the perception may be worse than the reality, but in public life perception and reality merge, and they in our view need to be much robust. They need to be seen to be much more robust. We do believe that apologies, if there is a, and we're doing a separate body of work on alternative dispute resolution on libel, so we believe both in cost term and natural justice and peoples peace of minds terms, resolving issues out of court, and quickly, in all areas where there is a privacy infringement where there is a libel issue or getting the facts wrong or whatever, that the more quickly its done the better. However, we don't believe that they still have got, no matter what they say, we don't believe they've got the equivalent right, in terms of apologies that are commensurate with the original offending piece and we think they should do more on that. And we also think they should have more lay, it's still the perception, and again it's worse than the reality, is that this is an editors' trade union. And they have the two recent, two good appointments to their council, but we think they should go further, and they should be more public, they should be more robust. They should in some way adopt the more vigorous OFCOM approach but through self regulation but self regulation is absolutely, it needs to work for free expression, it needs to work and it needs to be seen to work.

HL What about sanctions?

ML Their sanctions regime, the issue again I think if they had a council, a decision making process that was a) more transparent and b) those decisions were being taken by people who did not have an interest in the outcome, in others words were not editors and whatever, then any sanctions regime could be tougher and could carry more public credibility.

HL Such as?

JK Well I mean ultimately, you know we come across this all the time with, we're dealing, within other aspects of free expression, which is offence, which is a really interesting area. Whether it's religious offence, whether it's racial offence, whether its offence caused by comedians, whether it's artistic offence, all this stuff happens all the time. So if you look at the Jan Moir incident for example, or the Jonathan Ross, it is ultimately for editors, or managers, to decide, and I think the idea of any quasi governmental, and governmental, quasi governmental saying that person must be sacked, would go down a very difficult route. It's ultimately, so I do think that final decision should rest with editors but if the naming and the shaming was more prominent then editors would be able to come to their own conclusions feeling that the process has public credibility.

HL So the editor is god?

JK No the editor isn't god. Then we elide into the wikileaks issue, you know, that phrase was used all the time about Wikileaks and I could go on a long time about that. The editor is not god, but the editor is the employer. If you're running BP and you have an oil slick you or your board decide who is culpable, or who is not culpable or whatever and you take your own decisions. You wouldn't have government sacking managers in corporations or in any other walk of life. You wouldn't have government sacking errant judges for making a series of wrong decisions so therefore all private organisations need to come to their own views.

HL That's a bit of a red herring though is it not because the key to the issue in the powers of the Press Complaints Commission is their inability properly to hold editors to account. We all know that the media is in some difficulty commercially at the moment. If the Press Complaints Commission admonition of an editor, a slap on the wrist at one end of the scale and at the other end of the scale putting 50,000 sales on. How many editors do you know who'd say oh dear the Press Complaints Commission don't like me I'd better behave?

JK Well I'm not sure I would subscribe to the various points that you make. The sliding circulation in newspapers does not seem to be arrested by this kind of journalism anyway. I think there's quite an interesting industry debate about higher standards. Look at the newspapers now across the piece who are doing better than the others, they may still be going down but they're going down a much slower rate than the others and some are even going up, they are quality. There is actually no money to be made and this is a separate criticism to I would have, there is no money to be made in a lot of quality, because a lot of quality has migrated, a lot, you know this kind of unchecked cavalier approach to journalism has migrated online. When people want to buy, when they want to buy, when they want to pay for products they want to pay for a product that has value. So if you, I just do not accept this point, which is a point I would make at least as vigorously to editors, that cutting corners on quality and cutting corners on ethics actually is something that will deal with the global problem of the decline in media.

HL You don't seem to have come forward with a model that would have the kind of clout that would redress some of the power issues. Everything you've said so far has been about the rich and the powerful and the famous, you know the footballers and so on. But there are a lot of ordinary people who get caught up in some of these stories. We saw one of them in one our sessions, Helen Wood, who got caught up in the Wayne Rooney case, found herself in very difficult circumstances, unprotected. There are people like Mr Murray who was involved in the, a lot of publicity around the Madeleine McCann. disappearance. The gentleman who was arrested in Bristol at the time of the Bristol murder last year. Non of what you are suggestion is going to give protection to any....

JK But some of these are and some of these are not privacy issues. Some of these are not privacy, some of them are issues of sub judice. Some of these are issues of poor practice that have nothing to do with privacy.

HL Well let's take the...

JK Yes, for example, if you start saying oh, he done it when it comes to a murder when he hasn't then the attorney general, as we often get advice from attorney generals and solicitors general, would have something to say about that. We have the recent case also of the juror, there's all kinds of issues around poor practice, offline and online that are not specifically tied to this issue of article 8. What's happening at the moment in my opinion is that this privacy debate is almost like a big net, it's like a fishing net, to address everyone's grievance, legitimate or other wise and many of them are legitimate about the state of the press. And I simply would suggest to you that yes there are all kinds of issues around media standards but privacy is a specific issue, again there is a, we have two, we have sort of two, what I'm trying to do is to navigate through what I think are two quite unedifying bull like phenomena, you have a sort of intransigent tabloid editor sense of there is no problem. And you have others who say, actually we've all gone to hell in a handcart and if you look at the situation prior to and including the Gordon Kaye affair of how ever many years ago that was, the media was far worse than it is now. Far worse, you know the kinds of pictures that were taken on hospital, you know the kind of stuff the police were slipping the media, doctors and nurses and orderlies were slipping the media, the photographs that would appear, the invasions of privacy then and the sharp practice involved, was at least as bad as anything that took place now. I'm not in anyway, as I hope you've surmised from my presentation to you, defending any of this but all I simply ask people to do is to put it into historical context.

HL I'm just found it a bit difficult to grasp why that you think a model that still rests with the editor getting to a very large extent off scot free when there are issues of accuracy .....

JK You have a splash headline which accuses somebody of doing something and the next week you have the equivalent which is a splash headline saying apology to Mr or Mrs so and so, no editor, in front of his managing editor, or owner, would get off scot free on that, the problem is they bury it on page 20 at the bottom ....

HL Well I've run an editorial management department so I could disagree with you on that. There is just one final point that I would like to make to you. There is an issue of balance of power between the ordinary person and the power of the press. You've not come up with a solution that helps redress that balance of power when someone is captured in these privacy issues.

JK Well I have hope I have and I'm happy to develop what I haven't yet done is to set it out in bullet point terms where I think privacy, the three main questions that you are looking and that the joint committee should look at and I could offer some thoughts on what exactly is privacy, who is entitled to privacy and what exactly is the public interest. And I think if we can, and I'm happy to offer some pointers in that regard. If we can over and above article 8 develop pointers in that area then a lot of the other problems, not all by any means, will fall into place. At the moment I would venture to suggest that people in public life including judges, including the PCC whose own definitions I think you found wanting struggle in this area. So if we could, while acknowledging that case by case is always going to apply, produce really strong responses to those three questions I think a lot the, to use your term, big person and smaller person complaints in this area would be resolved or at least people would know where they stood.

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