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Phone hacking: an investigator, a journalist and a lawyer give their verdict at the Centre for Investigative Journalism summer school

A notable panel including Guardian head of investigations David Leigh, Bishop International investigations firm chief executive Jeff Katz, and media lawyer Gavin Millar QC gave their thoughts on the phone hacking scandal at the timely Centre for Investigative Journalism summer school. Daniel-Joseph MacArthur-Seal argues the professionals speak to much, but hear to little, from the public in whose interest they purport to act.
Daniel-Joseph MacArthur-Seal
25 July 2011

This year’s Centre for Investigative Journalism summer school couldn’t have come at a better time. Three momentous days for for the British press unfolded, rumours and news reverberating around the conference centre packed with noted investigative journalists and many more representatives of the younger generation of freelancers and junior reporters. 

Appropriately and inevitably, the first evening’s panel dealt with phone hacking. Gathered were David Leigh, The Guardian’s investigations director, Gavin Millar QC, a leading media and public affairs lawyer, and Jeff Katz, chief executive of private investigation firm Bishop International. The latter two represented interests less heard in the public debate so far, which has been dominated by journalists and politicians, and so were especially welcome.

Across the panel there was a sense of foreboding. A Dr. Frankenstein-like fear at what the Guardian’s revelations had created. This has been the tone of recent days of the crisis, reflected in many of the day before’s (Thursday, 14 July) leaders, which after a couple of paragraphs of condemnation of actions at The News of the World, turned to defend the ‘freedoms’ of the media as whole:

The independence, energy and irreverence of the British press are qualities that must on no account be smothered in an overzealous desire to eradicate practices that are already punishable in a court of law. (The Independent)

Judges are notoriously disdainful of popular newspapers. We must now hope that this one recognises that a robust free press is a cornerstone of democracy...The rich and powerful would love to see the media tamed but the rest of society would pay a heavy price. (The Daily Mail)

Every MP now purports to think that the Murdochs are too powerful and that hacking was a disgrace. Some may be tempted to impose heavy regulatory restrictions on the media as a result. Many, after all, want revenge for the press's role in exposing their expenses – using a stolen computer disc bought by the Daily Telegraph. (The Guardian)

However much MPs may wish to punish the press for the sins of some papers, they must not interfere with its basic freedoms. (The Evening Standard)

The scope of the proposed inquiry and the righteous tone of the politicians who instigated it has alarmed many in the press, particularly those who are convinced they fight the good fight, which is most of them, though, as Paul McMullen’s purported public-interest defence of celebrity hacking shows, some such claims are more tenuous than others.

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Katz made the important point that the snooping of the media and private investigators was both in its extent and invasiveness nothing compared to the hundreds of state-sanctioned, though secret, undisclosed and largely unaccountable, investigations carried out by the security services. The abuses of state investigation were widely discussed in a later session from Annie Machon, a former MI5 agent. 

But does this greater evil excuse the relatively minor infringments of investigators on behalf of journalists? Unlikely, as an audience member commented – the fight for privacy must be taken to many fronts; the state (as Smari McCarthy of the Icelandic Modern Media Initiative has done for the last three years with significant successes - the subject of another session), the media, and commercial companies - where data harvesting has become integral to the business models of social networking and communication services as well as computer manufacturers. 

When this wider assault is considered, it is clear that even after the revelations, handwringing and apologies, none of us are safe from invasions of our privacy, no matter how uninteresting we feel ourselves to be. The immediate, individual response to this should be to do everything we can to protect ourselves and others who trust us. It was thankful then that how to protect personal information was a major topic of the summer school, with Wojtek Bogusz’s sessions on the subject especially informative in this regard (a comprehensive and easy-to-understand resource of free privacy and security measures is available here).

Gavin Millar QC was concerned by the infringement of additional legislation into the media world over the last decade, particularly in the form of European Court of Human Rights legislation on privacy, and the threat of more to come. Any judicial judge led inquiry would in the end recommend further legislation, he said, as had all such inquiries before it. 

Katz and Leigh’s interest in preserving their current liberties was perhaps more obvious, but surely a media lawyer only stood to make more money from additional legal instruments? Perhaps a statutory body would have a near-monopoly on the work required, but more interestingly, was another audience member’s remark that law firms also turn to private investigators occasionally, a point confirmed by Katz.

All were understandably keen on maintaining the public interest justification for extraordinary investigative measures, those that in other contexts and with other objectives would be illegal. There was a worry, expressed by Millar and Leigh in particular, that a judge-led system would be deleteriously conservative in its attribution of public interest, and that the grounds for such defences would be whittled down under the anticipated regulatory system. 

All of which gave the sense of something of a rallying cry around the PCC’s codes of conduct, even if it was acknowledged that there had been problems in enforcing against, and discovering, breaches of these. As they stand, these give public interest exceptions to clauses on privacy (3), harassment (4), reporting suicide (5.2), protection of children (6 + 7), access to hospitals and their records (8), sensitivity around crime reporting (9), subterfuge and deception (10), and payments to criminals (16). The public interest is given a wide and open definition:

1. The public interest includes, but is not confined to:
i) Detecting or exposing crime or serious impropriety.
ii) Protecting public health and safety.
iii) Preventing the public from being misled by an action or statement of an individual or organisation.

A second clause asserts that “There is a public interest in freedom of expression itself”, which might suggest an assumption that all publication is in the public interest unless demonstrated otherwise. This is unclear, however, since ‘Whenever the public interest is invoked, the PCC will require editors to demonstrate fully that they reasonably believed that publication, or journalistic activity undertaken with a view to publication, would be in the public interest.’ Further confusion arises from clause 5, which states that ‘In cases involving children under 16, editors must demonstrate an exceptional public interest to over-ride the normally paramount interest of the child.’ The distinction between exceptional and standard public interest is difficult to fathom.

Throughout is the assumption that newspaper editors in conjunction with the PCC are capable and responsible judges of the public interest. Newspaper editors and journalists form the Editors’ Code of Conduct committee, that sets the code, while alleged breaches are judged by the PCC committee, formed of journalists and editors and public members (read senior businessmen and professionals). At the top is an independent chair, appointed by industry representatives, who are the Commission’s exclusive funders via Pressbof, another committee, which gathers dues on print publications, this one largely formed by media executives rather than journalists or editors.

This tone was echoed on the panel. No one problematised the concept of public interest, there was an air of self-assurance that the panel were perfectly capable of judging the public interest, unswayed by their professional interests – or at least, they were certainly far more capable than any statutory body, judge or MP could ever hope to be. But surely there is only one body truly capable of deciding the public interest, and that, obviously, is the public. Public interest will have to remain, even be bolstered, as the key factor in determining when transgressions have occurred and what punishment is due. Public input therefore needs some channel in the process – whether by jury, or the elected appointment of adjudicators. At present, the 'public' are often spoken of, but never seen. 

Podcasts of many of the summer school's sessions are available here

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