Leveson's central recommendation is a contradiction in terms

The phrase “independent self-regulation,” used by Lord Justice Leveson, was presumably crafted to make his proposals seem less threatening. It’s certainly having the desired short-term PR effect: it’s been unthinkingly parroted in all the instant media reaction. But it may end up being an own goal.

Because if you actually stop to think about it, it’s nonsense. Regulation is either independent of the industry, or it’s self-regulation. It can’t be both. You’d expect a High Court judge to know that, wouldn’t you?

Similar troubling syntax is employed on the alleged distinction between “statutory regulation” and the “statutory underpinning” of the supposed “independent self-regulator.” There is, in fact, no essential difference. Any legislation, “underpinning” or otherwise, will, as the report makes clear, have to set a series of statutory criteria for a regulator which will amount to government involvement in the affairs of the press.

At the very least it establishes a precedent, a crack in the door, which future governments will have no difficulty in widening. Indeed, at worst, the criteria could be immediately drawn in ways which would at once establish state control over some aspects of the press.

Leveson himself also recommends that if newspapers do not cooperate with this approach, then there should be a swift move to a statutory “backstop regulator” – that is, full state regulation of the kind almost no-one claims to want.

Leveson’s choice of words paradoxically underlines the central point made by the press – that there is no nice-sounding Third Way. The press is either regulated by the state, or it isn’t.


If the National Union of Journalists won't defend journalism, what's the point of it?

Chilling: Chris Frost

I’ve been a member of the NUJ for about ten years. To be honest, there was never all that much point. But I support the principle of trade unionism, I was grateful for the NUJ’s backing during the Hutton inquiry, and I valued the work it did for people who couldn’t stick up for themselves, particularly on local newspapers.

I’m now resigning from the NUJ in protest at what may be its existential mistake in failing to stick up for its entire membership. The union has decided to back a statutorily-underpinned regulator of journalists – a move taken without the slightest consultation with members, no doubt because they knew we would be against it.

The clincher for me was this chilling piece in the Press Gazette from the head of the NUJ’s “ethics council,” Chris Frost (pictured above), defending the union’s position. Mr Frost, an academic at Liverpool John Moores University, writes:

“The right to free expression…cannot be absolute…the key is to allow as much freedom as is concomitant with the rights of others balanced by the public interest…

“If I buy [a newspaper], I expect the news to be reasonably accurate, gathered ethically and a fair selection of the day’s important events…Those who say free expression is more important than those standards…make it clear they don’t understand free expression.”

Yes, you read that right: the union representing journalists wants a regulator to impose its idea of what constitutes a “fair selection of the day’s important events” on the press. No doubt by this Mr Frost means that the Daily Mail should be forced to run fewer pieces about housing benefit claimants and more about children suffering under evil Tory cuts. But it could just as easily be used by some government to demand that the press reports more on its successes and less on its failures.

The issue of “ethically gathered” news is a minefield, too. Had my newspaper not paid for a disc containing MPs’ expenses, the most you’d have known about that scandal would have been ten thousand sheets of blacked-out paper. We had the freedom to publish, and to be damned if we’d got it wrong. If some regulator had had to rule on whether we were being “ethical” or not, it would have held up the story, and given MPs another avenue to block us. (It’s generally forgotten now that they had a serious go at the paper at the beginning of the saga, before the sheer weight of revelation about their greed overwhelmed them.)

Even the requirement for accuracy, which seems uncontroversial enough to outsiders, is quite complicated. Newspapers should (and usually do) make strenuous efforts to be accurate – but we won’t always succeed. We are often shining a feeble torch in a large, dark cupboard. People try to mislead us or give us partial information. Many of the issues we report on are the subjects of bitter dispute, with no one “accurate” version. That’s often precisely why they are newsworthy.

The prospect of some regulator adjudicating when all this can override freedom of expression is terrifying.

On the subject of that all-important virtue, accuracy, I was interested to note that Mr Frost also claims:

“Concerns that stronger regulation would bring more interference are simply not supported by evidence. In 20 years of the Press Complaints Commission and more than 30 years of the Press Council before it not one complaint was made about any newspaper or magazine exposing malpractice by those in power.”

Is he serious? I alone have had at least a dozen PCC complaints from people in power whose malpractice I’ve exposed – like Lutfur Rahman, the extremist-linked mayor of Tower Hamlets (he lost on all the substantive points – but is no doubt looking forward to the rematch if some new regulator comes along.) I don’t know too many reporters in my line of work who haven’t had complaints about them to the PCC from those in power!

Mr Frost also repeats the canard that the PCC has been “brutally proved” by the hacking scandal to be “unfit for purpose.” But what happened at the News of the World, hideous as it was, was not a failure of the PCC or of regulation. There was already a rather strong regulation against hacking people’s telephones – the law. The problem was the failure of the police – many of whom were clearly in News International’s pocket or even on its payroll – to enforce the law.

No press regulator, however strongly constituted, could possibly have had the power to kick down doors at newspapers, seize emails and interrogate journalists under caution. Those are police powers; powers which the police had, but refused to exercise. The PCC’s only failing in the whole saga was to get involved at all. It should have said that the investigation of criminality was outside its power, and called in the cops.

Mr Frost’s claim that “almost everyone believ[es] there needs to be an improvement in the regulatory system” sadly flunks the truth test, too. Seventy-one per cent of the public, according to a recent poll, say that the priority should be better enforcement of the existing law. Perhaps what we really need is a regulator to enforce greater accuracy on third-rate media academics.

Now the NUJ is not a very important institution – but propaganda value of its stance to our enemies is considerable. If even the body supposed to represent journalists won’t defend journalism, what’s the point of it?

Hacking claims against me were 'attempted extortion', says High Court judge


The case involved the business set up to manage Lord Coe’s commercial interests

A High Court judge has today savagely criticised a man who accused me of hacking into his emails. In a judgment published this morning Mr Justice Tugendhat describes the allegation as “an attempt at extortion” and “without any basis in logic or fact.”

The claimant, a gentleman called Peter Abbey, dropped the allegation of hacking, accepting it to be groundless, before the case even reached court. But he went all the way to trial with a claim for breach of confidence against me and my then employer, Associated Newspapers, publishers of the Daily Mail, the Mail on Sunday and (at the time) my then paper, the Evening Standard. This claim was today dismissed by the judge as an “abuse of process” in some of the most scathing language I have ever seen.

It is, I think, an important judgment, and not just for us – but for the whole of the media, as a deterrent against all future chancers and ambulance-chasing lawyers who feel emboldened, in the post-Leveson climate, to try their luck with worthless claims.

First, some background: Peter Abbey is a slightly upmarket version of Arthur Daley, a man who for the last thirty years has left behind him a long trail of business failures, bankruptcies, angry creditors, County Court judgments and unpaid bills. Mr Abbey is a friend and former business associate of the chairman of the London Olympics, Sebastian Coe. In 2007, Abbey effectively ran a company called the Complete Leisure Group (CLG), which controlled Lord Coe’s commercial interests and image rights.

In September 2007, in the London Evening Standard, I published extracts from a series of emails in which Mr Abbey admitted that Complete Leisure Group had “pissed away” £400,000 of Lord Coe’s money. “I am not happy having this in writing for obvious reasons,” pleaded the great businessman. “This is about the worst situation I have had to deal with and we are trying to solve it quietly. DO NOT circulate this PLEASE!!!”

Other emails revealed that CLG’s auditors were refusing to sign off its accounts, and that its directors (including Lord Coe) were being threatened with criminal prosecution for failing to submit those accounts to Companies House. Finally, some of the crisis-ridden emails were copied to Lord Coe’s Olympic-funded personal assistant at Locog, Susie Black, who had a CLG email address – and who arranged meetings for CLG. That cast doubt on Locog’s public assurances that Coe kept his commercial money-making interests strictly “ring-fenced” from his public duties.

The first thing that several of CLG’s investors knew of all these difficulties was when they read about them in my article. The company subsequently lost many of those investors a great deal of money. Happily, however, it is now about to make Lord Coe himself a very rich man indeed – with a reported sale of CLG to Chime Group for £12 million. (Coe was not a party to Abbey’s legal action and the judge made no finding against him.)

Mr Abbey declined the opportunity to comment before publication, and didn’t make so much as a phone call of complaint afterwards. We heard nothing at all from him, in fact, for almost four years.

Then, in August 2011 – just as the hacking scandal was reaching its climax – Mr Abbey heard the distant tinkle of the cash register. His solicitors wrote to me and the Standard, accusing me of hacking the emails, threatening to call in the police and demanding £100,000.

As even Abbey now accepts, I didn’t hack the emails. I was passed them by another journalist, Ed Howker of Channel 4 – who’d just finished a programme on Coe but had got the emails only a day or two before transmission, too late to rework his film. As the judgment makes clear, Ed didn’t hack them either. He was leaked them by a confidential source, of whose identity I satisfied myself before using the emails.

Abbey denied that he was motivated by damages. In our opinion, however, he calculated that the very mention of the H-word in the post-News of the World climate would scare us enough to pay him some money to go away. He issued a writ with the allegation.

As Mr Justice Tugendhat puts it today: “What is troubling here is that Mr Abbey repeatedly alleged that the Defendants had committed criminal offences which are serious, and which were of the kind which had led to the demise of the News of the World (followed by reports of payments of very large sums of money to persons whose phones had been hacked), but in circumstances where there was no evidence to support those allegations.

“The fact he never did report the matter to the police supports the inference I draw that he made the threats for the purpose of obtaining a settlement on terms which he did not expect to achieve on the merits of his claim for breach of confidence.

“I find that this was an attempt at extortion, and that it was an abuse of the process of the court to attempt to obtain settlement of this claim by that means.”

Abbey also hoped, no doubt, as later happened with Lord McAlpine, that various little helpers on Twitter and the blogosphere would pick up the allegations and spread the mud around. They duly obliged. The Sally Bercow of this particular saga was the “respected” legal blogger and New Statesman columnist, David Allen Green, who went to considerable effort to punt the story out on Twitter and his blog to my colleagues in the mainstream media.

Mr Allen Green’s excitement at finding the evil Associated Newspapers apparently in the crosshairs was so great that he didn’t trouble to contact me for my reply to the allegations. When taxed on this failing by a journalist on Twitter, the “respected” blogger responded: “Do you give defendants a reply when writing about convictions?” Mr Allen Green is apparently a solicitor. If he doesn’t know the difference between a contested civil claim and a criminal conviction, perhaps he should reconsider that career choice.

Luckily, my colleagues in the professional media were more scrupulous than David Allen Green. They did contact me. Once I’d explained the circumstances to them, they lost interest – and the story never achieved the lift-off that Abbey hoped. I do, however, in a much, much smaller way, have an idea of the kind of thing that Lord McAlpine went through.

The other thing Abbey clearly hoped was that we would simply decide it was not worth the financial risk to fight. His solicitors, PSB Law, were on a CFA, conditional fee agreement – otherwise known as “no-win, no-fee.” So even if Abbey lost, he faced no financial penalty. And even if we won, we would be in line (as we are) for bills of at least £50,000, perhaps much more.

In Mr Justice Tugendhat’s words: “This is an example of a claim funded by a CFA which, as a result, put the Defendants in a position where there was a strong economic incentive to them to settle the claim, even if they took the view, as they appear to have done, that it was wholly without merit.”

Many other newspapers would have settled. Luckily Associated, which still owned the Standard in 2007, is made of stronger stuff. They hired top solicitors, Keith Mathieson and Louise Turner at RPC, junior counsel, Adam Speker, and one of the best QCs in London, Desmond Browne – who famously once kept two claimant witnesses in the witness box for 45 days, and who ripped Abbey apart in cross-examination. Mr Browne was worth every penny, but he’s not cheap. The total financial cost of the case on our side will be somewhere between £150,000 and £200,000 – much, but by no means all, of which we hope to recover from insurance. Then, of course, there’s the time this all took, time which could have been spent doing journalism.

The judgment in our favour was comprehensive. “There is no case that the Defendants [us] misused any information in respect of which [Abbey] had reasonable expectation of privacy,” said Tugendhat. “If it be necessary to decide the point, I would decide that the publication complained of was in the public interest.”

The judge also said: “It is plain that Mr Abbey never did have a realistic prospect of obtaining substantial damages for breach of any duty of confidentiality owed to him, or for misuse of any private information of his… Accordingly, in my judgment the claim was an abuse of process …The costs of the case are out of all reasonable proportion to the benefit that could accrue to Mr Abbey were he to have succeeded.”

In the end, even if it has cost us a lot of money, it might almost be worth it to see a chancer so thoroughly spanked, and to have a judgment affirming journalists’ right to print leaked material which is not personal, which has not been obtained illegally, which involves a major public figure and whose publication is strongly in the public interest.