Privacy Commission Day 5, Witness 2: John Mullin

The PM Privacy Commission spoke to the editor of the Independent on Sunday John Mullin on Friday June 24, 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 we're very please to have as our next witness, John Mullin, editor of the Independent on Sunday, the second editor joining us to give an editorial view on these issues of freedom of the press and public privacy. Welcome John. Perhaps I can invite you to give us a sort of feel of your experience in this debate about injunctions, super injunction and whether the press has been inhibited from doing its job.

JM Well I edit the Independent on Sunday which is, we like to think, and upmarket Sunday newspaper and in some ways that takes us a little bit away I think, if I'm honest, from first principles as far as the privacy argument is concerned. I don't who you've had otherwise as witnesses, but clearly I think you would love to have some people who are doing my job in the red tops in here and speaking more directly about them. But none the less there are general issues in there which are important from our point of view. I mean obviously I've had to deal with defamation cases, conditional fee arrangements has been a big sizeable issue in some ways in that regard, we've had tickings off or otherwise from the attorney general over contempt issues. But I have to say I haven't had direct experience of none of those injunctions and so called super injunctions have been against us. So it's second hand that I'm talking to I'm afraid

ML Well, your editor of the Independent in May ran a front page saying the law is a farce, I think he was focussing on the fact that twitter had released information that was subject to injunction. Is that your feeling that this is all a mess and needs addressing.

JM I do believe on one hand the law is in a very difficult situation but have in many, many aspects of this debate I have many sympathy with all sorts of players you might not expect me to have sympathy with. I think what's happened here is obviously if you turn attention to articles 8 and 10 of the European Convention and them being subscribed into British law and such is the way in Britain that case law has sprung up, or is implementing and we don't have a formal recognition of privacy on the statute books. And that being the case you obviously have law being interpreted by judges, and to very great extent, it seems to me, and again, I don't think I'm any great expert on this, but to a very great extent, many of those judgements were made by one judge. I think what's happened was the popular press, in particular, have got their backs up about that, and I think that's the real impasse at the minute. Whether we go onto to talk about, and I don't know if do you want to go on and talk about privacy law being made in and enshrined in this country, I don't know if that is the answer actually, I suspect possibly case law has done us quite well over a hundred, how ever many hundreds of years it may be, and it may continue to do so. But I think that may improve the less the critical judgements are made by the one judge.

ML You indicated that you have sympathy with a number of players in this saga, if we can call it that. I detect a sort of concern of whether the public are properly protected in terms of their privacy, is that right?

JM Yes, I would say, I would say that, I would say that's true. I would be worried about that. And I have got a great, great sympathy actually for Max Mosley in many ways, but at the same time if you were to push me on who I thought was right or wrong on the Max Mosley issue I would come down on the side of the newspaper actually, or I would have come down on the side of the newspaper. I don't think privacy can be, as far as Max's suggesting, I don't think you can have prior restraint and I wouldn't want to see that at all. But one does have certain sympathy with him in his quest. I think he has been treated quite badly in a lot of ways.

ML So the point in which you disagree with him is about the point of prior restraint and having to give notice because?

JM Because I don't think that's a fair British way of doing things. You certainly wouldn't do that in America, I can envisage situations, there will be situations where...

ML For journalists anyway, to have any such law at least

JM I think so yes

ML However, if somebody rather in a position that you've suggestion in a libel case gets wind of the fact that their privacy is going to be invaded, and Max Mosley, whatever you might think about the merits of the case, his privacy was plainly invaded, if you notify then that you're about to run the story and rather as if you say in defamation, we're going to justify, you say, but we're going to run public interest, and then you'd not expect a judge, would you, to order an injunction because you're going to run public interest. Do you think that would be a reasonable way of proceeding?

JM : That would be a reasonable way of proceeding, yes.

ML And then of course if you are unable to satisfy public interest you're likely to have to pay a lot of damages.

JM Yes I think that's right. I mean public interest is a very course, I'm sure you talked on public interest, would you have, if I turned the hypothetical back to you, if your hypothetical was Ryan Giggs in the first place and coming to you and injuncting you and you say we'll publish based on the public interest, you wouldn't really have a case, it would have seemed at the point of publication, it may be lawyers that would argue other wise, you have a case because publication of is clearly affected his commercial worth and I just, I just wonder, it's not even as clear cut as the decision at the point, because of the facts that come into play that come into the decision don't they?

ML I think what you're saying is that public interest isn't always easy to assess at the time you're thinking about publication and it isn't black and white

JM Is certainly is not

ML I suppose that the same could be said for defamation case in justification in the sense that you're not necessarily sure that ever single thing in the story is right. But then you've got the Reynolds defence haven't you?

JM You've got Reynolds yes

ML But by and large I think what you're saying is you're not very keen on prior restraint, it's not very British, it runs contrary to the idea of journalists running the story.....

JM I think it shift the balance of freedom of speech, the balance to form what I would say is in the wrong direction and I think that, one can't sit here and think of anomalies that would occur but I suspect that there would occur anomalies that would occur from making that a law

ML Now you were suggesting that it was one judge who was making most of these decisions that was making these decisions and that wasn't very satisfactory, now I don't think it is one judge but I know what you mean, it tends to be a coterie of judges who do these cases, but you may have noticed there aren't many of these appeals from these judgements. Have you actually have a chance to read those parts of the judgements or those parts of the judgements that you're entitled to red

JM I have read a couple of them, but only in passing not in a, not in necessarily in trying to draw a deep conclusion from them

ML Do they strike you that at least the right questions were being asked and that by and large....

JM Yes I wouldn't have any quibbles about that

ML One of the criticisms' of the whole super injunction business is the fact that impression is gained that there is rather uncertain law being applied by judges in private, that's certainly a lot of the press have given, I don't think particularly your newspaper. Do you think it would be helpful if parliament actually spelt out in more specific terms what the law of privacy was as apposed to relying on the human rights act where there, a slightly vague concept comes into play?

JM I've thought about this a little. I'm not on the whole sure parliament spelling out privacy and public interest is a necessarily good thing. As I said earlier, in some ways the British system works quite well in the idioms of grey and living constitution law, judgments etc. I'm just not sure that parliament setting these things out in statute is itself, although there are obviously attractions in it, but in its self the ....

ML Parliament said there are still going to be shades of grey because no statute is going to cater for every single case that comes along.

JM Well that is a problem isn't it? Because I think that is a difficulty and, you know, I mean, I don't know how you begin to draught the law, and I presume that, and again I'm no expert in that, but I presume that you leave yourself way open for appeals back to Europe

ML Well of course any of parliament has to be compatible with the human rights act, there has to be a declaration to that extent. But you're right it has to refer back at least in general terms, at least to the principles. Can I turn to the question of social media? Now, of course whatever orders may be made against the media that may not easily prevent people commutating via social media, do you have any comments about that apparent tension?

JM I may be wrong in this, but I think, I think twitter could be a proper tool for the mainstream media, in fact again I might be wrong in this, but I'm sure the Guardian, in the same way the Giggs case was tweeted, and I'm sure in the Guardian the Trafigura case was tweeted, and that was one of the key things that brought about what happened there. It is very difficult, I mean, the social networks in general cause us all sorts of worries and difficulties and of course the great thing in the way is of the, you know, TV in the 60s and so on, the great technique is for newspapers to somehow absorb them and turn them to their own advantage. We haven't yet done that, yet in general terms in news media. Clearly twitter etc offers great difficulties for the law as well as for us. I do not know how you, if you were to frame a privacy law, how you can apply that against 10s of 1000s of people who are tweeting names of footballers who are at the centre of super injunctions.

ML I think in February the PCC cleared you of breaching privacy guidelines after you published tweets via the department of transport employee?

JM Oh yes, I'd forgotten about that one

ML And in fact the PCC ruled there was no reasonable expectation of privacy. Do you recall that?

JM I do recall the case now? It was the civil servant wasn't it?

ML It was yes. So presumably you were happy with the PCC ruling on that?

JM We were happy with the PCC. We're always happy when PCC rules in our favour, which they have done always.

ML Yes, so you think they have a role there?

JM Well the specific of that case I fail to what her possible complaint could be because if was highly public and it was re-tweeted and she put her own pictures up as I recall and you know, I think she was fair game in that instance. I'm not quite, there may have been, there may be other instances where that wouldn't have applied and we wouldn't have done it but it was clearly relevant to her job of work as well what she was doing.

ML Do you feel that the PCC is performing it's job in the way that you'd expect it to?

JM Well as I said earlier on I've got sympathy for some of the players in this gig. The PCC would be one. I'm sure a familiar refrain that you hear is a complaint about resources in news media these days. It's a much, much more difficult operation now than it was even 10 years ago and certainly 20 years ago. And I think the PCC suffers that in the same way the rest of us suffer. It's clearly not good enough for them to mount an enquiry into the phone hacking allegations against the News of the World and throw their hands up and say well we just couldn't get to the bottom of it. But the problem is they're not terribly well resourced and I do think that's a big problem for them. But not only that, not only are they not terribly resourced, they're pretty much unloved, they're not exactly nurtured within the media world. But I think they do a pretty good job as far as it goes but I'm not it's the job of a full blooded tooth and claw regulator, well it's clearly not. And I don't quite see how you get from here by not being a full blooded regulator to making it one other than a dramatic change of attitude within the industry and I suspect that's quite unlikely.

ML Can I take you a bit deeper into issue of economics of the newspaper publishing. These are difficult times you said for all newspapers. And that's not just a matter of current national economic circumstances. There are questions about whether the economic model of newspaper publishing can survive.

JM : There's the current recession, which is piled upon all of the ongoing difficulties that particularly print media have but no one has yet worked out how we've got a model to push on in the future with a digital strategy. Yes, tough times.

ML So some have suggested that those pressures to survive actually mean that the red tops have to publish scandal to keep their audience. Do you agree with that?

JM I don't agree with that actually. While it may be true that there are pressures on newspapers, in particular, to do things differently and to do things better and to do things with fewer resources than there were before, I don't think that's the primary force pushing the red tops and middle market papers, by and large because, you know, certainly News International group is a highly profitable organisation and so is Associated. And I don't really view the economics as being the fundamental push behind this. I think there is a pressure on papers to do more, better and be more imaginative in what they do and you've got much more competition with the internet etc. But I don't really think that's the pushing this now.

ML Perhaps we should explore what we both mean by this. Would you agree with those who assert that over recent years popular press have become more concerned with titillation and scandal and rather less concerned with investigative journalism.

JM I'm not sure I would agree with that actually. I'm not sure I would agree with that, it would be a very interesting thesis for somebody to do, to go back and look at the popular press of the last 10, 20, 30, 40 years and compare with what it is like now. My impression is that it isn't partially more outrageous, I don't quite mean that in as loaded a way as it sounds, than it was 10 or 15 years ago. I don't really believe it is.

ML Let's just focus on Sunday for a moment because you publish a Sunday newspaper and yet as you look across Sunday newspapers they are more likely to have rather lurid front pages than most newspapers in the week aren't they? The very competitive circumstances on a Sunday......

JM But that's always existed and I don't believe. It's a very interesting question and it's one of those assumptions that one makes that one would be perfectly happy to see challenged and possibly should do a little bit of work in that regard ones self, but I don't think the papers are particularly more lurid than they would have been 10 years ago.

ML I'm leaving that point and suggesting that actually Sunday is a very special day for newspaper publishing and a Sunday compared with a weekday you're more likely to find lurid front pages and the sense that newspapers have focused on the Sunday as the day that they get their story to market. I mean, of course, it's the day on which the News of the World is published which is a title which is right at the centre of this debate.

JM Well, we could have a long debate about the role of Sunday in the week of newspapers and there are many people who would say that it's decreasing in importance and Saturdays are more important. And I don't subscribe to that actually I still think that people read papers differently on a Sunday and have a little bit more time for it, and are probably, which touches your point, looking for something a little bit different. And it is an incredibly competitive market, there's no doubt about that.

ML You're rather slowly getting to my question, which was to ask what the pressures on you are to change the type of publication that you are responsible for in that way which where there is so much coverage of footballers........

JM Well I think that's a very interesting question. I'm not sure it's necessarily of much interest to your inquiry. I think from my point of view as the editor of the 4th out of 4 quality newspapers on a Sunday, you obviously have to try very hard to find some market definition in a way that you possibly didn't need to do 10 years ago. The finances of the organisation were such that, although the Independent's never been an independent organisation, it's never in recent memory been a money making operation, it is generally happily looked after by benevolent benefactor but times are harder, times are tougher, you have to think much more carefully about where you are in the market and that entails what you put in the paper obviously. I think from my point of view my paper has to be much more eclectic, it has to embrace very serious issues, and sometimes done very seriously and sometimes with a little twist, in a much more accessible or interesting fashion to try and catch people that might not necessarily be interested in that subject. And it has to the do more pop end or the showbiz end of the market but it has to try and do them in an intelligent and up market fashion and it's for others to judge if it does it. But that's certainly the aim. But as far as that puts us into areas of privacy I'm not so sure that really applies to me. There is a sometimes false distinction in the British press between the posh papers and the red tops and in a sense absolutely encapsulate that because although we're a tabloid which would be seen as a red top we would have broadsheet values and so on. So being tabloid is a state of mind rather than necessarily just the size of your page. And there is a certain hypocrisy within the British press amongst the posher papers, slightly lofty attitude toward the lurid tales. But you will notice and it can't fail to escape your attention that after day one and day two of a particularly lurid story then the posh papers all pile in with column after column by outraged people saying how terrible that this should happen and here's another 6 pages of it. So there's a certain hypocrisy at the heart of the debate. I would parenthetically actually and I suspect you haven't too many people here speaking up for the British tabloid press, but not withstanding the fact that there are undeniable problems, not withstanding the fact that some pretty sharp practices have been going on, not withstanding the fact that we do operate in a different economic environment now. You know, I think that British tabloid press is a pretty impressive beast and I do think that it withstands comparison with, you know, geographically around the globe it stands in comparison with anyone.

ML As you say it helps to restore the balance of comments. Can I take you onto one area that I'm sure that Helen would raise is she were here today. And for a short period you were deputy editor of the Scotsman, I think. Were the issues of balancing freedom of, the care you took about privacy different in Scotland?

JM It's 10 years ago since I worked back in Scotland and so this is certainly only impressionistic, and I'd better be careful in what I say in some ways. There seemed to me to be a closer relationship between, by and large, between newspapers and the people they were writing about in Scotland. Now that might be a function of it being a smaller place. I felt, and again it's impressionistic and I can't think of anything that fell into the gambit of injunctions or privacy controversies, but my impression was that self censorship operated at quite a reasonable level there. Not necessarily in a good way, tremendous papers, tremendous journalists up there, but I do sometimes wonder if the distance wasn't quite there sometimes.

ML It's that proximity to the people a little bit....

JM I think so, and I wouldn't want to be nailed to the cross on this because as I say it's more an impression than anything else.

ML Was the law scientifically different?

JM Not as far I can think in any meaningful way of application. I can't think of anything that I can recall that stood out there as being different than down here. Of course the Sunday Herald did the Ryan Giggs front page and it's funny because two weeks before that I had wondered, or a week or so before that I had wondered if someone in Scotland might do it because that was always a great way out in the time of the Spy catcher affair. And it happened in Ireland as well didn't it? There was another instance of another super injunctees being done.

ML Well let me give you and opportunity to, we've invited every guest to do, if you just want to make a short statement as if it were directly speaking to listeners on the balance of the rights of privacy and freedoms of the press.

JM It's clearly a very difficult area. But I'm not convinced that a privacy law is the way forward. In fact I think it would be a bad think, I think you'd create anomalies and imperfect thought that is I think there's something in the present system. There's certainly difficulties at the moment but I think as time goes on, as more judgments are made I would prefer to see that as a way forward for dealing with the conflict between freedom of speech and privacy

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