Friday, 2 March 2012

But what comes after?

This is an article originally published in "The Phone Hacking Scandal: Journalism on Trial" Ed Richard Keble and John Mair


‘We were just ordinary people.’
At the end of November 2011, a steady stream of ‘ordinary people’ whose lives and reputations the tabloid press had trashed gave their accounts to the Leveson inquiry. Bob and Sally Dowler – who were just ‘ordinary people’ until someone murdered their daughter. Gerry and Kate McCann – who were just ‘ordinary people’ until their daughter Madeleine disappeared in Portugal. Or Jim and Margaret Watson – who were just ‘ordinary people’ until their daughter was murdered and their son, Alan, committed suicide.
Or even the father of footballer Garry Flitcroft – ‘collateral damage’ in the tabloids’ revenge on his son who dared to try to protect his privacy. Flitcroft’s father could not be at the inquiry. He killed himself, unable through depression to watch his son on the football field.
It was impossible to listen to these accounts without a sense of profound sadness mingled with downright rage. Impossible, too, not to wonder what it takes for someone calling himself a journalist or an investigator assisting a journalist to find himself so distant from common human decency. Leveson has become subtitled ‘the phone hacking inquiry’. It’s very much more than that. Phone-hacking is just one small part of something that’s become very, very sick in our culture and our society.
A tabloid press whose business model had become so dependent on trashing the reputations of ‘ordinary people’ – as well as celebrities, politicians, people in public life – that it is now nothing other than a machine to convert harassment, intrusion, misery, sneering and mockery into cash.
Anger and vindictiveness are its default settings. Papers sell on the depths of their inhumanity. Columnists are judged by the frequency and inventiveness of the offence they cause.
No Defence
By the end of just one week of these accounts to the Leveson Inquiry, it was clear the game was up. Almost no-one was prepared to defend the way the tabloids use their immense power. And while it may still be far from clear how the world will change for them, change it will.
Few tabloid editors, even, are prepared to take the stand to defend what they do. And listening to one that did, the Daily Mail’s Paul Dacre, you can understand why. True, Dacre was prepared to break cover and deserves some credit for that. But there the credit ends. And though he was speaking to the Leveson Inquiry before that long queue of ‘just ordinary people’ gave their accounts, he misjudged the public mood catastrophically.
Claiming what he and fellow editors did – and, presumably, how they did it – was in the public interest. Asserting his and his fellow editors’ absolute and unqualified freedom of expression. Standing on their right to expose corruption and hold power to account. This is hypocrisy of the most snivelling sort. Worse, it pollutes the arguments we need to protect the best in journalism by trying to justify the worst.
Yes, it’s vital that we protect our freedom of expression. Yes, it’s vital that no-one can be silenced when they call power to account or root out corruption or ruthlessly examine and embarrass powerful institutions. Yes, it’s vital that we insist power is exercised transparently and that we can hold it to account. And it’s vital that we protect the right of the press to do all of these. But the truth is, that’s not what the tabloids do.
For every MPs’ expenses exclusive – not a tabloid exclusive incidentally – there are thousands of “ordinary people” harassed, vilified, libelled. For every court battle that lifts injunctions to expose evil corporations – not something the tabloids have ever indulged in – there are dozens to assert the tabloids’ right to report that yet another dog has bitten yet another man. Or rather, another premiership footballer has been caught with his shorts off. Defending the tabloids’ right to do what they want to who they want how they want is nothing to do with protecting free speech. Or protecting the press.
Powerful Institutions
The fact is that tabloid newspapers are mightily powerful institutions themselves. And amongst the least accountable and transparent, defending that lack of accountability and transparency in the name of ‘protecting sources’. Actually, it’s about hiding the yobbish behaviour and lazy omissions that go into their vindictive journalism. Or to cover up the fact that a story was planted by a PR agency. Or bought from someone who, at the sight of hard cash, would say whatever a journalist asked them to.
These powerful opaque institutions care nothing about your or my freedom of expression. In fact, they suppress it if your freedom of expression in telling the truth lessens their potential to make money with a lie. As a society, we have the right and the duty to expect of this powerful institution exactly what we demand of others. To determine how they should exercise that power. To impose on it responsibilities. To insist they’re accountable to us for the way they use their power.
We demand it of our police, our hospitals, our politicians. We cry foul when institutions far less powerful than the press seem out of reach of our insistence that they behave in our interests rather than theirs – the bonus grabbers in the City or bond dealers, for example. So it is with the press. The phone-hacking scandal has done no more than bring to a head the boil we know had been festering for years.
People Not Like Us
After hearing account after account of harassment and distortion at the Leveson Inquiry, it began to seem that the tabloid press is peopled by beings who are not like us. Or perhaps and more likely, people who started off like us but have been transformed by the mean minded, mean spirited, macho culture in every tabloid newsroom. 
The lack of the most basic, human, decent regard for the family of a murdered girl is simply the worst excess in an ethic that has no regard for anyone. Celebrity or ‘ordinary person’. Victim or villain. Powerful or powerless. A total refusal even to consider the effects and consequences of what they are doing. The rest of us know it’s not just about phone hacking. The rest of us know that the game is up. The rest of us know we can’t go on with this powerful interest group – the press – behaving like the Stasi, restrained by nothing. We can’t even assume any more that common human decency will restrain them.
The American journalist Janet Malcolm began a book she wrote in 1990 called The Journalist and the Murderer like this: ‘Every journalist who is not too stupid or too full of himself to notice what is going on knows that what he does is morally indefensible.’ People were prepared to argue with her then. Only tabloid editors would argue with her today. As the Daily Mail’s Paul Dacre did in a performance before Leveson that was defiant, disingenuous and in denial.
‘No-one Died’
He could only just bring himself to condemn phone hacking and bribing police officers – even though both are illegal. Neither are such a big deal, he insisted – showing contempt for Mrs Dowler’s tears and her husband’s gnawing fear. Britain’s cities weren’t looted because of phone hacking, nor did the banks collapse because of it. ‘No-one died,’ he sneers. Actually, that’s only just true. Charlotte Church’s mother attempted suicide after the News of the World hacked into the singer’s phone. And I wonder how much any tabloid editor would have cared if someone had died. It was a chilling insight into a warped mindset.
In his speech to Leveson, Dacre claims that the public’s revulsion over phone-hacking derives only from ‘hypocrisy and revenge’ in the political class – i.e. MPs – because the papers ‘dared to expose their greed and corruption’. Nothing to do with the years of harassment, thieving, blagging, distortion, lies, deception, monstering. Nothing to do with the tabloids’ default assumption that reputations – big and small – are there only for his power and business to trash.
Nothing to do with every tabloid editor’s usurpation of the right to decide who is evil. To decide who must be pursued and vilified – based only on which victim will yield the best financial return on the outlay. The issue isn’t that newspapers must be free to tell it how it is. It’s that we’re fed up with them using that freedom to tell it how it isn’t. To harass, distort and lie in the name of profit.
Tabloid editors defend what their papers and their journalists do in their name because, as Dacre has argued at both the Society of Editors and before Leveson, they have to ‘leaven their papers with sensation, exclusive pictures, scandal, celebrity gossip and dramatic human stories’ in order to cover serious news, politics and campaigns. On the face of it, that’s not just reasonable. It’s self-evidently true. For the tabloids to stay in business, they have to appeal to their readers’ less lofty instincts. And so long as they’re in business, they can bolt onto that titillation and sensation and gossip some serious news, scrutiny, reporting, opinion, campaigning. In other words, serve some useful purpose.
Beyond Useful Purpose
That used to be true – but as everyone now knows, we’ve gone way, way beyond that. What used to be the ‘leavening’ is now the purpose of most tabloids. The sole content of some. And instead of serving any useful purpose, it poisons our view of ourselves and corrodes our culture and our society.
Dacre is fond of quoting two former senior judges – judges, incidentally, he would in most other circumstances revile as the people who really run the country. Lord Woolf, who a decade ago when he was Lord Chief Justice, put it like this:
 "If newspapers do not publish information which the public are interested in, then there will be fewer newspapers published, which will not be in the public interest."
 While Baroness Hale, now a Supreme Court Judge said:
"Newspapers should be allowed considerable latitude in the intrusions into private grief so that they can maintain circulation and the rest of us can continue to enjoy the variety of newspapers and other mass media which are available in this country."
Both judges were talking, there, about a balance that no longer exists – a balance that everyone in the country, apart from tabloid editors, knows no longer exists. We have, instead, what one hacking victim called ‘sociopathic’ fixation with intrusion and scandal. The sociopathic fixation of a powerful institution that has the unbridled power to ruin the lives of those it and it alone decides deserve it. But let’s assume just for a moment that tabloid editors such as Paul Dacre are right. And that we need the papers to stay in business, however that can be achieved, because if they were to disappear that would ‘diminish our democracy’.
True, of course. And we have seen some of this in the carnage in the local press. As local papers fold, Dacre tells us: ‘Courts go uncovered. Councils aren't held to account. And the corrupt go unchallenged. That is a democratic deficit that in itself is worthy of an inquiry.’ It would be impossible to disagree with that. So let’s take a closer look at the Daily Mail’s attitude to the courts and the processes of justice.
Remember the case of what the Mail called ‘The Strange Mr Jeffries’? The retired schoolteacher who had the misfortune to be Joanna Yeates’ landlord. Who, though entirely innocent, was briefly arrested and questioned. How did the Mail and the other tabloids report the inquiry? With respect for the courts and for the innocence of any suspect until proven guilty?
We all know the answer. The Daily Mail and other tabloids spared no effort in portraying Mr Jeffries as a weirdo. After all, he was a bachelor and had funny hair that he once dyed purple. Subtext? We all know the message the tabloids were screaming at us. He had campaigned for a ‘gun range and prayer books’. Subtext? How weird is that? Shades of gun-toting Christian fundamentalism. And had a fixation for Christina Rossetti, a poet obsessed with death.
It’s true, the Mail wasn’t the worst – but it was in the pack, securing its place in that pack, making money from trashing Christopher Jeffries. Turning contempt for him and for the proper process of justice into profit. Respect for the courts? Or for Mr Jeffries right to have the truth told about him? Free speech? Protecting the press’s right to report the facts fearlessly? It was none of these. It was a naked, calculated commercial risk – that any financial cost would be outweighed by the income it brought in. And when it came to acknowledging its part in trashing Mr Jeffries, the Mail was as surly and grudging as an adolescent caught shoplifting:
Eight newspapers apologised to Mr Christopher Jefferies in the High Court yesterday. Reports of the investigation into the death of Joanna Yeates had wrongly suggested that Mr Jefferies, who was arrested but released without charge, was suspected of killing Ms Yeates, may have had links to a convicted paedophile and an unresolved murder. It was also wrongly alleged that the former school master had acted inappropriately to pupils. The newspapers, including the Daily Mail, agreed to pay Mr Jefferies substantial damages and legal costs.
The Mail could not even bring itself to say – ‘We’re sorry.’ When it was totally, completely, 100 per cent banged to rights in its race to the bottom as tabloid outdid tabloid in contempt and defamation all in pursuit of market position and profit?
Balancing the Financial Cost of Lies
We saw something similar in the way that Richard Desmond’s papers – the Daily Express and Daily Star – libelled the McCanns and Robert Murat week in, week out – over 100 times. As Leveson heard in that week of tabloid shame at the end of November, these libels weren’t slight things. Ambiguities dressed up as sensationally as possible. ‘Maddy “sold” by hard-up McCanns’ . was one. Allegations that they had stored her body in a freezer, another. Did they run these stories because their newshounds were fearlessly tracking down the facts? Holding the Portuguese police’s feet to the fire, keeping them up to the mark with their insistent scrutiny?
No. These ‘journalists’ were sitting in a bar in Portugal, filing the latest odious rumour so that back in London, editors could make a simple calculation. What’s the financial risk if we run this lie? If we’re sued, will we have made more through lying than we stand to lose in court?
There’s even a myth that the tabloids are better behaved and disciplined than they were in the seventies. Then, as Paul Dacre told the Leveson inquiry, reporters would steal photographs from homes; blatant subterfuge was common; invasion of privacy was unrestrained; harassment was the rule. And he sketched a typical scene in a typical tabloid newsroom. A scene where editors and executives stroked their chins in careful contemplation of the editors’ code. A scene that is as touching as it is fantasy:
"When a photograph is presented, the question is immediately asked: Did the subject of the picture have a reasonable expectation of privacy? In stories, executives question whether the privacy of the person’s family or health is being invaded and whether their children are being protected. Were we harassing people?"
Now I find this very difficult to reconcile with Hugh Grant’s account of Mail and other tabloid journalists’ behaviour towards Tinglan, the mother of his child. A woman and baby, the tabloids decided, who needed a bit of harassment and a sound trashing.
How Tabloid Photographers Really Behave
Take this. Grant’s description of arriving home one evening to find reporters and photographers besieging Tinglan and her baby:
"I asked them if there was anything I could do or say to make them leave a new and frightened young mother in peace. They said show us the baby. I refused. I asked them if they thought it was acceptable for grown men to be harassing and frightening a mother and baby for commercial profit. They just shrugged and took more pictures."
Does a mother in her own home with her baby have a ‘reasonable expectation of privacy’? Clearly not, as far as journalists acting in Paul Dacre’s name are concerned. It makes you wonder what that ‘reasonable expectation’ might ever amount to in the tabloid mind.
Perhaps, though, we should cut the tabloid greybeards some slack as, back in the newsroom, they carefully weigh whether or not to run these pictures and these stories. Perhaps they won’t make the cut once the editor knows how the photographers and journalists behaved? Think again. In his evidence to Leveson, Grant named the Mail journalist leading the charge:
"He is also the person behind most of the texting and phoning of Tinglan since the birth…Some of the pictures that are printed of Tinglan when pregnant, taken either covertly…or openly and expressly against her will, are the ones used in the News of the World article back in April. The Mail appears therefore to be picking up where the disgraced News of the World left off." 
And it’s not just young mothers and their babies in their own homes that the tabloids now consider appropriate victims of their thuggish harassment. Here’s more of Hugh Grant’s statement:
"Tinglan's mother, a lady of 61, started to take photos of one photographer parked outside. He immediately turned his camera on her, took some pictures and then accelerated hard towards her so fast that Tinglan's mother had to jump out of the way. Then he did a U- turn at the end of the street and drove fast towards her again in a deliberately menacing way. She was, and remains, extremely frightened."
I’m wondering what the Daily Mail headline would have been if, instead of a tabloid photographer trying to run down a 61 year old granny in the street, it had been a failed asylum seeker. Or a traveller from Dale Farm. Or some other Mail hate figure.
But it wasn’t. It was a tabloid photographer from the world that tabloid editors like Paul Dacre have created. A world where there is no regard for anyone and where there is a mocking, sneering culture. A world and culture that John Lanchester described so precisely when he reviewed Nick Davies’ book Flat Earth News in the London Review of Books: Too many journalists, he wrote, are:
"...indifferent to their own best traditions of independence, recklessly indifferent to the central functions of reporting and checking facts...and in far too many respects, simply indifferent to the truth. There is a growing, industry-wide failure to be sufficiently interested in reality."
By the end of 2011, Leveson – and the rest of us – had heard account after account of the most unacceptable behaviour and attitudes. Behaviour and attitudes that, if they existed in any other sector of society, the tabloids would condemn day in, day out in page after page of spume flecked outrage. They would ask what kind of person wouldn’t just hack a dead girl’s phone but stalk her parents when they walked their daughter's last journey. Or print the private diary of a mother whose child has been stolen away. Or wear disguise to gatecrash a private funeral to photograph a father’s grief.
‘What kind of ethics can you teach this kind of journalist,’ one of the lawyers asked at the Leveson inquiry. Rhetorically, one has to assume. Expecting the answer – none. It’s just not possible.
What To Do?
The question is, though, what to do? A question Lord Leveson plans to answer, perhaps in full perhaps in part, towards the end of 2012. And he may well try to answer the question that before, during and after the phone hacking scandal has been repeatedly asked. Can the press regulate itself? Or do we need statutory regulation?
The trouble is, that’s the wrong question. This is no longer about replacing the failed Press Complaints Commission nor re-casting the utterly discredited editors’ code..There is, instead, a much more important, prior question that now demands an answer. What do we require a free press to do on our behalf? And what do we want it not to do in order to be a civilised player in a civilised society?
How do we make sure we have a free press that really can expose MPs’ greed; corporate corruption and crime; police, doctors social workers and the rest who really are incompetent. A press that can bear witness on our behalf; campaign for justice; argue the hell out of everything that matters to us. But do it without divesting itself of every shred of decency. Without the harassment, the lying, the blagging, distortion, vindictiveness that’s become the norm in this powerful institution.
There’s no easy answer and it would be foolish to pretend there is. But one thing I do know. The last people you want to make or monitor any set of rules are the crooks themselves. Imagine if you will the Mail’s spitting outrage if paedophiles were invited to draft new child protection laws and enforce them. Or if illegal immigrants and people traffickers were to be given control of Britain’s border. Quite.
The tabloid press has proved beyond any doubt that it can’t be trusted to regulate itself. But if the answer doesn’t lie in regulation, where might it lie? The fact is that the British media, including the press, is already surrounded by a forest of legislation. Legislation that, if it were enforced it as the legislators intended and as most decent, reasonable people thought proper, would constrain most if not all of the tabloid’s bestial behaviours.
The libel laws. The Human Rights Act that, effectively, balances rights to privacy and to freedom of expression. The Data Protection Act; the Freedom of Information Act; the Official Secrets Act; the Bribery Act; the Contempt of Court Act and so on. But this forest of laws is a mess. Some is statute, some common law. Most is effectively unenforceable or a real brake on responsible journalism because of the costs and time involved. Some have a public interest defence; some don’t. Some is closely defined, some a question of balance between conflicting statutes or precedents. 
It is a massive thing to suggest and I do so aware of the monumental, probably insurmountable difficulties in the way. But we can still consider ideals and in that an ideal word, we would have a new legal settlement for the media. A clear body of law that applied to people and businesses committing deliberate acts of journalism, whether paid for or not.
And one of the key characteristics of that body of law would be that all parts of it had a clear, public interest defence. And while it’s easy to get hung up on defining ‘public interest’, there is a model for this kind of defence in the so-called Reynolds defence – or common law privilege – in a libel action. It’s otherwise known as the defence of diligent and careful journalism done in the public interest. Tied to this new body of media law, however, we need rapid, low-cost resolution. Both victims and newspapers argue – rightly – that the cost of pursuing or defending a libel action is prohibitive. That, and the time involved, turns the righting of that particular wrong into a thermonuclear option. Yet most victims don’t want massive damages. An apology, explanation and putting the record straight is all most require. Quickly and prominently.
The one thing the PCC did, in fact, do well was to organise speedy mediation and resolution, particularly in the local press. And we also have the models of the small claims court and professional arbitration panels to draw on – models that limit costs and damages and aim to resolve disputes quickly and simply.
Streamlining and simplification like this would strengthen both free expression and the public’s ability to keep the press honest and accountable. But there should be more. Even with more rational media law, we’d still need an editors’ code – though one not written by the tabloid editors themselves – underpinning an independent, statutorily established regulator whose main job would be to investigate, rather than simply resolve, breaches of the code.
A burden? Perhaps. But here’s the thing. Newspapers could choose whether to be inside a system like this or not. Inside, you’d sign up to the whole package – complete with pubic interest defence and limited costs and damages. Outside, you could do what you liked – much as the tabloids do now.
Except for this. Outside would be very, very cold and hostile indeed. You’d have no public interest defence. Unlimited costs and damages. Juries and judges would, inevitably, take into account your decision to stay outside the system when they were apportioning those costs and damages. And, as is already the case with libel, the balance of proof would be against you – you’d have to prove you hadn’t harassed, distorted, misrepresented. It wouldn’t be up to the complainant to prove that you had.
When Leveson finally writes his report, it’s very unlikely he’ll take a many steps in this direction. It would be a step – may be more than one step – too far. But it’s not a bad ‘high water mark’ against which we can judge whatever recommendations he does finally produce. But he’s already made it clear he’s not going to walk away and do nothing about this massively powerful, profit led institution that’s gone so far off the rails, it no longer knows where the rails once were.
Getting the Thugs off the Street
How else might we judge whether Leveson has got it right? In the long queue of ‘just ordinary people’ and celebrities who gave Leveson their accounts of tabloid harassment there was one that struck me especially forcefully. It was Sienna Miller’s. She told how up to fifteen men would stalk her every day. How they would spit on her to get a reaction. How they would chase her, alone, down dark streets at midnight.
The men weren’t just your ordinary, common-or-garden stalkers, perverts and muggers. They had been given licence by their editors – men like Paul Dacre – to leave decency behind and ‘legitimised’ by Miller’s celebrity and the cameras they carried. Miller was just 21 years old. The same age my daughter is now. That gave her account, for me, a painful resonance and piquancy.
Leveson will have got it right if his solution makes the press truly accountable to us, the public. If he brings some responsibility to the last unaccountable power in the land. If the tabloid press has to take more care than it does now that that it’s honest and fair and has more than a passing relationship with the truth. If it can tell the difference between challenging power and trashing the lives of the victims of crime. If we, the public, can put wrongs right quickly and fairly.
And if young women, whether a celebrity like Miller or ‘just ordinary people’ like the rest of us are no longer be terrorised by thuggish yobs, turning that terror into cash for the power that is the tabloid press.

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