Forget #Leveson. Journalism’s future is about being held to account by us, not judges or statutes
Lord Justice Leveson believes — or must now pretend that he does, for political reasons we explained in a recent post:
[B]loggers and tweeters … have no real reputation for accuracy or reliability but are, in many ways, no more than electronic versions of pub gossip […O]n the other hand, the established media and established journalists … have a powerful reputation for accuracy …
… and …
The internet … does not trade in gossip. It simply publishes it online, […I]t does so without, as yet, any general standards of behaviour, such as those to which the media is held.
The truth is that without thoughtful, diligent bloggers — and other agents of free speech — this trenchant perception from nine decades ago would still apply with full force:
[J]ournalism is supposed to tell us what is happening. It actually serves up a mixture of true facts, false facts, and comment … ‘The high mission of the Press.’ Poor Press! As if it were in a position to have a mission! It is we who have a mission to it.To cure a man through the newspapers or through propaganda of any sort is impossible: you merely alter the symptoms of his disease. We shall be purged only by purging our minds of confusion. The papers trick us not so much by their lies as by their exploitation of our weakness.
— E. M. Forster, 1925
Here is the concluding sentence of an exposé of serious misreporting by the press of an important government reaction to Lord Justice Leveson’s report — a warning by the Information Commissioner, Christopher Graham, about just one of the judge’s recommendations, in a favourable overall assessment of them:
Unfortunately, the press has once again, sacrificed balanced and accurate reporting of facts in order to promote its own political agenda.
Of course that would hardly surprise Forster, a subtle and deep social observer (whose perspicacity we have alluded to before, in the very different context of the British Raj in India). The blog post from which we clipped that grim conclusion is reproduced below with the kind permission of Hugh Tomlinson at the International Forum for Responsible Media (INFORRM) — which, as far as we can tell, is run not by members of the media but lawyers with a social conscience. Its subject is the distorted newspaper reports of the Information Commissioner’s reservation about Lord Justice Leveson’s suggestion on ‘subject access’ — that the subjects of news stories be permitted to examine the information about them in the files of journalists (with the 1998 Data Protection Act as his context). This is an eminently reasonable objection: opening journalists’ records to their subjects would make it it impossible to protect vital confidential sources. … But that is no excuse for the comprehensive misrepresentation by the press of what the Commissioner said about the Leveson report — as the INFORRM post explains in the fine and somewhat technical details it must, to justify its condemnation beyond any possible defence.
Independent voices like INFORRM’s are exactly what Forster wanted — members of the public, us, purging press lies from society’s store of critical information, without fear or favour, and treating upmarket broadsheets like The Guardian no differently from downmarket tabloids like the Daily Mail, when they are guilty of the same offences against the truth.
The Information Commissioner has published his response to the Leveson Report. His response was overwhelming positive, agreeing with the large majority of recommendations including, in particular, the recommendations about tougher sentencing for data protection offences. This would not, however, have been clear to readers of the British press. Newspaper reports of the response concentrated on one sentence of the 20 page document dealing with one part of one recommendation.
The Recommendation in question was number 49 – concerning the removal of the right of subject access from the “journalistic exemption” in section 32 of the Data Protection Act 1998 (a recommendation qualified by reference to the need to ensure the protection of journalist’s sources was not affected). The Information Commissioner commented (on page 11 of the Response) that
“The area of subject access is particularly problematic in that there are legitimate concerns about the ‘chilling effect’ Lord Justice Leveson’s proposal might have on investigative journalism. This area will need very careful consideration. This again is a matter of balance of interests and is ultimately a matter for Parliament”.
This comment was transformed into the “Daily Mail” headline, “How investigative journalism ‘could be harmed by Leveson’, says Information Commissioner”. The words “could be harmed” do not, in fact appear in the Information Commissioner’s response. The opening paragraph of the “Daily Mail” story is wholly misleading
“Key proposals in the Leveson Report could harm investigative journalism, the Information Commissioner warned yesterday”.
The Commissioner gave no such warning and did not cast doubt on “key proposals” – but rather, raised a question about one small part of one proposal. The “Daily Telegraph” had the headline “Leveson could have “chilling effect” on journalism, Information Commissioner warns”. No such warning was given.
The Guardian did not do much better with the headline “Leveson data protection plans ‘could have chilling effect on journalism‘. Again, the words “could have a chilling effect” do not appear in the response. The “Guardian” also, wrongly, states that the Commissioner said he would “actively oppose” changes to the role of the ICO in relation to the press. What was, in fact, said was that the ICO was “not actively seeking” a wider role.
None of the newspapers mentioned the fact that the Information Commissioner had welcomed the overwhelming majority of the recommendations – and in particular, the one relating to section 55 (which, as Julian Petley’s recent series of posts have shown, the press has been campaigning against for many years, see Part 1, Part 2, Part 3 and Part 4).
The Daily Mail and Guardian stories have been tweeted on several occasions and the disinformation is spreading. In order to assist our readers who do not have time to read the full response we will endeavour to provide a more balanced and accurate account.
The relevant recommendations fall into three areas: ones directed to the Ministry of Justice concerning the press and data protection, ones made to the Information Commissioner directly and ones with data protection implications generally.
First, there are those directed to the Ministry of Justice (Recommendations 48 to 57). These concern various amendments to Data Protection legislation in relating to the press. As a general point, the Commissioner says that
“Taken as a whole package, Lord Justice Leveson’s recommendations on reforming the DPA would, if implemented, move the ICO closer to becoming a mainstream statutory regulator of the press. The significance of the proposed changes should not be underestimated. It is clearly for the Government and Parliament to consider what role the ICO should ultimately play in regulating the press“.
The Commissioner makes it clear that the ICO is not actively seeking such a role but that, ultimately, this is involves “public policy decisions” for the Government and Parliament to make (p.9).
In relation to the specific recommendations under this head
Recommendation 48 – amendment of the exemption in section 32: The Commissioner says that this has merits but the key is creating the right balance which is a matter for Parliament.
Recommendation 49 – narrowing of the scope of the section 32 exemption: The Commissioner says this requires careful consideration and, as already mentioned, that there are “legitimate concerns” about the chilling effect of the proposal in relation to “subject access”. It is noteworthy that he does not add any example or analysis or express a view as to whether these concerns can properly be met in amended legislation.
Recommendation 50 – right to compensation to cover pure distress – The Commissioner strongly supports this recommendation.
Recommendation 51 – repeal of certain procedural provisions in the DPA – The Commissioner supports this recommendation
Recommendation 52 – provision relating to “balance” of freedom of expression and data protection regime. The Commissioner sees no difficulty with this but questions whether it is necessary.
Recommendation 53 – provision to have regard to a recognised system of regulation. The Commissioner, again, sees no difficulty with this but suggests that it reflects existing policy and practice.
Recommendation 54- bringing into force amendments to section 55 of DPA (custodial sentences and enhanced public interest defences). The Commissioner hopes that “there will be no further delay in implementing this recommendation”
Recommendation 55 – extension of ICO prosecuting powers -The Commissioner agrees that there is some benefit in an express power to prosecute for related offences although believes that its powers should not be extended to cover all crimes in which personal data is processed unlawfully.
Recommendation 56 – a new duty to consult with CPS – The Commissioner has no difficulty with this recommendation but wonders whether it is necessary to introduce a formal duty.
Recommendation 57 – reconstitution of ICO as an Information Commission – The Commissioner agrees that the opportunity should be taken to consider this option but mentions a number of alternative models.
The Leveson Report makes then makes nine recommendations “to the Information Commissioner” (Recommendations 58 to 66). These recommendations are all substantially accepted.
Finally, there are three recommendations that impact on the work of the ICO (Recommendations 67, 69 and 70). The Commissioner “welcomes” or “agrees with” all these recommendations.
In short, the balance sheet is that of the 22 recommendations relevant to the ICO, 17 are agreed with, welcomed or strongly supported. In relation to the others, the Commissioner believes that some require further consideration or should be accepted in part and that some (those relating to the journalistic exemption) require careful consideration by Parliament. None of the recommendations are said to be “harmful”.
So, a more accurate headline would have been “Information Commissioner welcomes Leveson Data Protection Recommendations”. There could be no proper complaint if newspapers had reported the Information Commissioner’s response and then added their own comments. Unfortunately, the press has once again, sacrificed balanced and accurate reporting of facts in order to promote its own political agenda.