Newspapers [Shutterstock]

Already, the jockeying for position has begun. Labour leader Ed Miliband has suggested that he will “accept” the Leveson recommendations — perhaps recklessly, considering he has not, to our knowledge seen them yet. Senior conservatives such as Michael Gove and William Hague have implied wariness of anything the judge might come up with, with Hague saying he would “err on the side of free expression”.

What emerged during the Leveson Inquiry is no less shocking for the retelling. Lord Justice Leveson heard harrowing accounts of phone hacking and intrusion, of newsrooms that appeared to have lost any sort of ethical bearing, and of unnervingly intimate relations between politicians and media executives. The need for change is genuine, and urgent.

So what’s actually at stake in the coming months? The question most discussed is “statutory regulation or not?” Or, in simpler terms — Should the government create a law that will decide how the press is regulated?

It’s important to state the issue simply. Over the past year, the Leveson orbit has developed its own subculture and jargon, with angels-on-pinheads arguments on issues such as the difference between self regulation and independent regulation.

If parliament is allowed  to create a specific press law then a precedent is set whereby politicians may feel they have the right to meddle with press freedom, for party political reasons or short term gain. Even a “light dab” of statute could create a level of parliamentary power over the press. Maintaining a positive image is vital for politicians, and they may find themselves tempted to pressurise papers, who in turn may feel less free to criticise our leaders — a crucial function of a free press.

Members of the press are already subject to restrictions on free expression: that is, the same restrictions everyone in the country is subject to. A law relating specifically to the press creates a kind of licensing, meaning that journalists would potentially face more restrictions on their right to speak freely than the average Briton.

So what do we do? Several newspaper proprietors and editors have come up with suggestions for independent regulation “with teeth”, in the hope of convincing the government that the industry can clean up after the disastrous and disturbing News of the World phone-hacking scandal. There are rumours that David Cameron is willing to give the press “one last chance” to put its house in order.

It’s important that the press shows willing here. The population was rightly horrified by the breaches exposed in the Inquiry, and newspapers, with trust at an all time low, must themselves make the case for high standards, good governance and common decency throughout the industry.

Whether the press is really in the last chance saloon or not, it’s vital that the government steps back from statute, and that the press makes a convincing case that it is really capable of reform.

Padraig Reidy is news editor at Index. He tweets at @mepadraigreidy

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The UK has a press-controlled state rather than a state-controlled press. Phone hacking lawyer Mark Lewis reports on lessons from Leveson

Time and again, the criticism of the Leveson Inquiry is that it is another nail in the coffin of a free press. Who says so? The press themselves. Who are they kidding?

My answer to anyone who raises this argument to me is: “How sweet, you really believe that we have a free press!” Stop and look at the phone hacking scandal. Not the actions of those involved (one scandal), but all those newspapers that did not even report the story (another scandal). Post-Dowler, The Times ran an editorial apologising for not telling its readers. So many papers misled their readership by saying nothing. Absolute censorship. It does not suit us for our readers to know, so we will not tell them. Censorship backed up by the non-regulatory regulator: the Press Complaints Commission. We want it to stay and regulate us, say the press. It isn’t a regulator says the PCC’s new chairman, Lord Hunt. So there you have it, demands by the press for the preservation of non-regulation. A licence to print anything, a licence to ruin lives and, more sinister, a licence to cover up. Which journalist feels able to write an article that accuses his editor? That’s a problem Lord Justice Leveson won’t be addressing.

No matter how strong an advocate one is of freedom of speech, it does not equate with an unrestricted freedom of the press. It is often lost (although not on LJ Leveson) that “free speech” and a “free press” are not interchangeable concepts. Test the theory: a paedophile wishes to sell pornographic pictures of children. Should he be prevented from doing so? Of course. I doubt anyone would argue seriously that such abuse should be aggravated just because of freedom. I suspect the ubiquitous tabloid reader would (rightly) express moral outrage. Ironically, the same reader who would argue that we should stop that publication would baulk at the idea of any form of censorship.

So let’s see where we draw the line. We do need some form of censorship, even John Kampfner, former chief executive of Index on Censorship, would agree. There are times when the balance drops on the side of preventing publication. The press seems to be obsessed with exposing adulterous affairs of footballers and the medical treatment of celebrities, but is not keen at all on any issues regarding journalists. When did you last read of adultery by an editor? Speeding by a journalist? Or drug taking by an opinion writer? Are these the most moral, sober, narcotic-free role models? Or is it that the freedoms they cherish so much include the freedom not to write anything harmful about themselves or their colleagues.

We need to move away from hypocritical attempts to defend scurrilous story-writing by the sanctimonious utterances of those who should know better. The freedoms we want are not freedoms to ruin lives, to gossip or to distract. That is not the free press we strive for: what we want is the freedom to write on any subject about anyone within the confines of good taste. We do not want to have a press that is controlled by a state, but we also do not want to have a press controlled by a quasi-state such as a large corporation.

Leveson has put the ethics of the press in the spotlight. The relationship with the Metropolitan Police has been exposed. People must still ask why a crime was not investigated while the reviewer of that case,  John Yates (who described his six-hour review as a “bit crap”), did not re-open a case that subsequently led to Operations Weeting and Elveden. We know from Leveson that the News of the World thought it was entitled to a payback for the glasses of champagne that it had bought for Yates.

The biggest lesson that we have learnt from the inquiry so far is that we have a press-controlled state rather than a state-controlled press. As Rupert Murdoch made clear, he never asked a prime minister for anything. Surely, the response should be: “Exactly, everyone else has to ask.”

Will Leveson deliver? I hope so. The issue is far more wide-reaching than the alleged criminal activities of a few, or even the ability to determine a complaints mechanism that avoids the “chilling effect” of disproportionately expensive legal cases — it concerns democracy itself. We need politicians who are able to represent the people even if our interests are opposed to those of the press; we need police who act against the press without fear of reprisals, and we need journalists who are prepared to tell us what their bosses don’t want us to read.

Mark Lewis is a partner at Taylor Hampton. He represents many clients whose privacy was invaded by the News of the World. He also acted for Dr Peter Wilmshurst and the Sheffield Wednesday fans who were sued for libel

Exclusive extracts from our magazine:

The Blogger | Guido Fawkes | Where will this all end?
The Journalist | Trevor Kavanagh | The Leveson effect
The Editor | Alan Rusbridger | Striking a balance
Hacked Off | Martin Moore | The danger of power

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This article originally appeared on Comment is Free on guardian.co.uk

Poor practice tends to get in the way of good intentions. During a meeting at the foreign office a few weeks ago, I gently reminded the decent-minded mandarins that they had a problem: Britain’s role in pushing internet freedom, and freedom of expression more generally, was being undermined by our own government departments. Trouble with rioters last summer? Well, go after BlackBerry messengers, David Cameron suggested, until it was pointed out to him that this was exactly the sort of thing the Egyptian and Tunisian regimes tried to do during the Arab spring.

Now, Britain’s parliamentarians, in all their familiar bluster, have come up with a new wheeze: why not order search engines to go on a giant trawl and delete – not only from their searches but from the internet itself – any material that is deemed to invade privacy?

“Google and other search engines should take steps to ensure that their websites are not used as vehicles to breach the law and should actively develop and use such technology,” reads the report published today by the joint Lords and Commons committee on privacy and injunctions. Translate these words into Russian or Mandarin and you can imagine the uproar.

Just in case these uppity tech firms don’t get the point, our MPs and peers recommend that if they refuse to censor voluntarily, they should be forced to do so through legislation. Our traditionally insular parliamentarians had, at least, the foresight to acknowledge that such “pro-active monitoring … may not be consistent” with the EU’s directive on e-commerce, but what the heck, why not give it a go?

The government is likely to thank the committee for its deliberations, and then give them a wide berth. In any case, everyone is waiting on Lord Justice Leveson’s hacking inquiry this autumn. The questioning I received in January at the hands of Leveson’s leading QC was more arduous, and informed, than the grand-standing of the committee. I was struck, when giving evidence in parliament in November, by their ignorance about the digital world. One of the few MPs who understands the issues, the Lib Dems’ Martin Horwood, tweeted straight after that session about the “embarrassing rudeness” and “ignorance about internet” from his “colleagues”.

Google (who, to declare an interest, I now advise part-time on freedom of expression) already complies with “take-down” requests by national authorities. However, if the content is legal in another state, it remains visible in that nation. These requests are now listed in a regular “transparency report“. What Google do not do is embark on giant fishing expeditions, acting as the global censor of taste, decency, legality and privacy.

Max Mosley, who successfully sued the News of the World over his privacy – appears to have seduced the committee. Not only have they bought completely his complaints that search engines have failed to erase in perpetuity all “offending pictures” of him, but they nearly bought his idea that all journalists be legally obliged to give prior notification to anyone they might be planning to write or broadcast about. His application was resoundingly thrown out by the European court of human rights – Index on Censorship was among those objecting to the application – but still the committee has recommended that Britain’s new beefed-up press regulator should require prior notification, “unless there are compelling reasons not to”.

The one, and perhaps only, innovative idea in this copious report is to put the onus on newspaper company directors to take responsibility for standards. One of the points that seems to be lost in the phone-hacking privacy maelstrom is that this has been much more a problem of the nexus between politicians, police and media moguls than it is about day-to-day journalism.

It is perhaps no surprise that parliamentarians are no great fans of the fourth estate. It was they who, still smarting after the expenses scandal, sought to exempt the issue from freedom of information scrutiny.

The UK needs a more professional and rigorous regulatory system. It needs executives and non-executives to be held more accountable for their actions. But this country already has some of the most restrictive laws in the democratic world, particularly when it comes to defamation and surveillance.

This report is replete with affirmations about the importance of free expression. MPs and peers talk a good talk, but fail to understand that – while improvements must be made to standards – the only people who benefit from a clampdown are the rich and powerful. Look at Hungary’s hideous new press law, with its statutes on licensing and other measures that some of the witnesses to Leveson have advocated. Look at France, where generations of politicians have claimed privacy to evade scrutiny on their financial misdemeanours. Ask yourself: does our media find out too much or too little about what is done in our name? It is no wonder that our politicians then seek to tame these feral beasts.

John Kampfner is the outgoing chief executive of Index

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This article first appeared in the Guardian

On virtually any day of the week, if you so fancy, you can attend a conference somewhere in Britain on the state of the media. Even before the Guardian revealed the depravity of the hacking scandal, you could discuss the rights and wrongs of privacy, courtesy of Max Mosley et al; the need to reform our hideous libel laws, which my organisation and others have led; or the relationship between open information and confidentiality, thanks to Julian Assange.

Throw in the long-running discussion about print versus internet, and a veritable industry has been created on the future of the press. With so many people worrying about so much for so long, how did this crisis unfold before our eyes?

Two inquiries will seek answers. The first, which the government claims will have to await the outcome of police criminal investigations, will provide the great drama. Men and women, including some of the most powerful people in the land, may be led into the dock. The extent of corruption in the Metropolitan police will be unearthed. The biggest prize of all, if achieved, will be the emasculating of News International as a political force.

Free expression

The less exciting but just as important investigation will focus on the ethics of journalism. It is likely that a successor will emerge from the ruins of the Press Complaints Commission, a body that in its composition, remit and powers was woefully inadequate from the start.

Senior figures at the PCC became agitated with me for my criticisms, arguing that advocates for free expression should be more supportive. The opposite is true, and demonstrated their lack of understanding of the problem. Free speech is undermined by consistently poor standards and by limp supervision – a point forcefully put by the Commons culture select committee in March 2010.

The PCC, chaired by Lady Buscombe, was a mediation service, not a regulator. Even at the height of last week’s saga, it seemed to have no idea of the scale of the scandal. Its consistent plea over the years that it could intervene only after a complaint was made further eroded its credibility.

Up to this point there is some consensus. Root out and punish this industrial-scale criminality for sure; but then what? Can a strong media ever be whiter than white? And even if one could be created, would it benefit democracy?

In order to unearth wrongdoing, investigative journalism uses a variety of nefarious methods: secret recording and filming, impersonation, trading in “stolen goods”, and, yes, phone hacking. From WikiLeaks, to MPs’ expenses, to documentaries about MPs and lobbyists, to exposing arms trading, some of the most lauded reporters – including on this paper – have pushed the boundaries of legality. The inquiry should be careful about blanket bans.

For some there is an easy answer: stop the redtops plying their grubby trade and focus on political and business journalism and other “respectable” subjects. I would love the tabloids to return to the values of the Mirror of old, before the advent of celebrity and the paps – and we should certainly try – but do we want to replicate the media culture of countries such as France where three or four posh papers are read by a tiny proportion of the population?

The answer, as with privacy and other issues, requires a proper definition (which has so far eluded us) of public interest and accountability. Does a particular investigation serve the public good? That is almost always a subjective judgment. As for accountability, any such activity must on each occasion be signed off by an editor, responsible in law for those actions.

Impose further impediments to investigative journalism and the only people who will benefit are those with power who have something to hide. Hark back to Tony Blair’s illusory weapons of mass destruction or the sharp practices of bankers and ask: do we, as a society, know too much about what goes on or too little?

During the parliamentary debate last Wednesday, a number of MPs showed a creditable sensitivity to the problems. Others are simply chomping at the bit to exact revenge on a profession that has, in their minds, done them in.

Ignore the newfound piety of politicians bemoaning the influence of Rupert Murdoch. Did Blair have to fly halfway round the world in the mid-90s to pay homage? To what degree did some journalists help get some in Downing Street off the hook during the Hutton inquiry? And when that inquiry was published, controversially exonerating Alastair Campbell and others, how did it end up in the pages of the Sun in advance? At each year’s party conference, special seats would be reserved for Rebekah Wade (now Brooks) and her entourage, and she would take hers with the imperiousness of Cleopatra.

As David Cameron argued on Friday, in a vain attempt to deflect attention from his unhealthy links with Andy Coulson, Brooks and the Murdochs, they were all in it together, all these ministers and these editors and proprietors.

It is simply not good enough for politicians to claim they had no choice. They loved it. Labour chose not to deal with media cross-ownership when it had the chance. The Tories sought to wave through television dominance, until being shamed into a rethink.

This was a sordid trade-off in which politicians of all parties were culpable. In return for this humiliation, perhaps a sense of self-loathing, they sought to bully journalists from other stables who had the temerity to ask inconvenient questions. Any consideration of the ethics of journalism should look at the personal links between the Westminster press gallery and spin doctors and advisers. A much more subtle form of corruption has been at play there for decades.

So exactly what kind of media do we want? A new focus on standards, transparency and accountability can only be beneficial. Journalists love to dish it; most of them hate to take it. The industry operates a virtualomerta on exposing its own failings. Private Eye’s Street of Shame column provides a valuable public service in exposing what newspapersdo not publish as much as what they do. Several newspapers operate “non-aggression pacts”, in which they do not report the wrongdoings of their rivals – including revelations of affairs that they would readily publish about people in other walks of life.

Dogged reporting

This broader culture of collusion was one of the most appalling aspects of the phone-hacking scandal. Some of the journalists opining now in print or on Twitter about the evils of Murdoch-land either ignored the Guardian’s dogged reporting or sniped at the newspaper for its “obsessiveness”. Even in recent days, a number of newspapers – not only in the News International stable – tried hard to play down the significance until they were forced to give the story due prominence.

This story has pointed to the many dark corners of journalism. It is also a triumph of journalism. It would be a tragedy if, through the wrong kind of regulation, this kind of tenacious work was now stunted. Thanks to our libel laws, editors have for years advised reporters not to pursue certain people, even when they knew the story would stand up to scrutiny. Causing trouble usually damages cashflow.

This is a tough time to be promoting freedom of expression. You cannot have only the free speech you think is worthy. The instinct now is to tar everyone with the same brush. Even before this scandal happened, the government was looking at tightening controls of the internet. It has been moving towards libel reform with publication of the draft defamation bill; it should not use the past week’s events to dilute planned changes that are already cautious.

No country has the perfect media. The Americans love to scoff at our press standards, pointing to their “fact-checking” as a norm. Yet even that high altar of journalism, the New York Times, has got it terribly wrong on several important occasions. The US culture can lead to self-censorship on sensitive issues, particularly at times of crisis such as after 9/11, and to excessive respect for authority.

I remember wincing at summits when the Americans would stand to attention as president and prime minister walked in, while the Brits sat sullenly in their chairs. I know which I prefer and which is healthier for democracy. The same goes, in different ways, for France. Do we want privacy laws that render every photograph, every action private unless specifically rendered public?

It would be a tragedy if the impetus behind the past week’s events dissipated and, with a few short-term improvements in behaviour, the media returned to its past practices. It would be an equal tragedy if – as a result of both genuine and disingenuous anger – a new culture were developed of dull, hemmed-in journalism that appealed only to an elite.

The task facing the inquiry is to help foster a new journalism as a fearless and painstaking challenge to authority, one that makes mistakes, oversteps the mark, irritates and offends, but that is fully accountable for its actions.

John Kampfner is chief executive of Index on Censorship and author of “Freedom For Sale

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There is a confusion at the heart of British debates about privacy. We tend to speak of journalists, of their role, their rights, their responsibilities and very often their lack of restraint and how it should be addressed. But this is misleading, and prevents us from seeing some of the complexities and possibilities, because the word ‘journalist’, in this context, covers two very different groups of people. One group is the actual journalists, as traditionally understood, and the other is those people whose principal professional activity is invading other people’s privacy for the purpose of publication.

The difference between the two, when you pause to consider it, is profound. Journalism is demonstrably valuable to society. It tells us what is new, important and interesting in public life, it holds authority to account, it promotes informed debate, it entertains and enlightens. For sure, it comes with complications. It is rushed and imperfect, it sometimes upsets people and in pursuit of its objectives it occasionally does unpleasant or even illegal things. But by and large we accept these less welcome aspects of journalism as part of the package, and we do so because journalism as a whole is in the public interest. It does good, or to put it another way, we would be much poorer without it.

Invading people’s privacy for the purpose of publication does not do good, though it may make money. In that industry, deception and payment for information are routine, not exceptional. The subject matter is almost never important — except to the victims, whose lives may be permanently blighted – and while a story may entertain, it does so only in the way that bear-baiting and public executions used to entertain. The whole activity exists on the border of legality, skipping from one side of the line to the other at its own convenience and without sincere regard for the public interest.

If they are so different, why do we tend to lump them together? A number of reasons. One is that journalists themselves are slow to draw the distinction because theirs is traditionally an open industry, without barriers and categories, and also because they don’t tend to think of what they do in terms of doing good and being valuable. But there is also a more tangible explanation, which is that the privacy invaders do everything they can to blur the line. It is in their interest to be considered journalists, after all. They can shelter under the same umbrella and enjoy the same privileges as journalists. They can talk about freedom of expression, freedom of the press and serving the public interest; they can appeal to tradition and history and they can sound warnings about current and future censorship. This helps them to protect what they do.

Today, in 2011, the activities of the privacy invaders have provoked a crisis which threatens to compromise and damage the journalism that is done in the public interest. After a succession of scandals, the worst of them associated with Rupert Murdoch’s News of the World, the demand for tighter legal constraints on the news media has reached a level not seen for many years. This is probably not another “last chance saloon” episode, with empty warnings and hollow condemnations, as was seen in the early 1990s, because the centre of gravity in the debate has shifted. Many people in Parliament, the law and the media itself who were previously vital to the defence of press freedom are in despair. They watch in particular the phone hacking scandal, in which the News of the World has been forced to admit illegally accessing people’s voicemails on an astonishing scale, and they feel that the press is out of control and unwilling to take responsibility for its failures. There is a strong chance that the next year or so will bring important change.

The greater the threat of effective press regulation, the more the privacy invaders can be counted upon to press their claim to be journalists, and so part of the free-speech tradition. They are like drowning men in the water, clinging on for dear life to those who have lifejackets. But journalists, for their part, may be approaching a moment of choice. Do they acknowledge the difference, the better to protect their own interests, or do they risk being dragged down into the depths by the sinking privacy invaders?

And it is not just a moment of choice for journalists. The reading public also needs a clearer understanding. We need to recognise privacy invasion for what it is, to accept that a luridly packaged, sensational, self-promoting and at the same time self-righteous product is actually bad for our collective health. And we need to grasp better the distinction between that and what is genuinely done in the public interest.

Privacy invaders at work: the Max Mosley case

The most vivid recent example of the privacy invaders at work, and the one which most clearly shows that what they do is not journalism, is the case of

Max Mosley, the former president of the Federation Internationale de l’Automobile. Because Mosley sued, details of a modus operandi which normally remains hidden were exposed. The story is well known, but details are worth revisiting.

In March 2008, the News of the World persuaded a woman who participated in private S&M parties with Mosley to film one of these events secretly, promising her £25,000 if the resulting story made the front page. A reporter was recorded showing her how to use the camera and saying how far away from Mosley she should stand “when you want to get him to do the Sieg Heil”. The party took place and the paper got its film. There was no Sieg Heil, but some German was spoken in one role-play scene (by a participant who was German) and joke-shop prison uniforms were worn in another. In the paper’s view, this established a useful connection — Mosley’s father had led the wartime British fascist movement. The story appeared under the headline: “F1 boss has sick Nazi orgy with 5 hookers”.

The next week, for a follow-up story, the paper approached two other women participants and told them to choose between being identified in print and giving an interview. They refused to cooperate, so the paper returned to the first woman. Her payment had been unilaterally reduced from the promised £25,000 to £12,000, but she was now told she could earn a further £8,000 if she gave an interview. (It was alleged in court that she too was threatened with exposure.) She agreed, but the court heard that her role in the interview involved nothing more than signing the first page of a text that had already been written, and which was altered between signature and publication. It appeared under the headline: “Mosley hooker tells all”.

Besides the fact that it appeared in a newspaper, there is almost nothing here that qualifies as journalism. For one, the whole approach is difficult to reconcile with the code of practice of the Press Complaints Commission (PCC), which at least in principle binds journalists working for member organisations and which includes clauses on such matters as accuracy, privacy and the use of subterfuge. The code makes clear, for example, that it is not acceptable to employ a clandestine recording device on a ‘fishing expedition’ — in other words, when you don’t have good grounds to expect you will gain a particular kind of evidence of a particular kind of wrongdoing. Though the paper made desperate efforts in court to create the impression that it had had such grounds, the judge would not credit them and indeed no reasonable person would have.

In a way, though, the terms of the code were the least of it. This may sound pious, but it is a simple fact that journalism has to be about truth. If a reporter is not trying to write about the world as he or she sincerely believes it to be, then the product is not journalism. It is fiction passing itself off as journalism. In this case the paper didn’t get what it hoped for (the Sieg Heil) but relied instead on some other German words it didn’t understand and did not bother to have translated. (German = Nazi to the News of the World.) The paper promised its informant £25,000 and then paid her £12,000 because it knew she could not hold it to its word. It threatened people with exposure if they did not cooperate, but in court denied this was blackmail. It presented its readers with an ‘interview’ which was nothing of the kind. Even in court it could not get its facts straight. The judge observed of the author of the supposed interview: “… his best recollection is so erratic and changeable that it would not be safe to place unqualified reliance on his evidence”. And yet for all the shameful conduct that was laid bare, no one at the paper was disciplined or reprimanded, let alone sacked. In other words, this is what the News of the World does.

More than anything, though, it is in their attitude to the public interest that the privacy invaders mark themselves out as different. The public interest is central because it is a sort of get-out-of-jail card for journalists, though it is actually recognised only grudgingly in law. An ethical journalist can justify telling a lie, or covertly recording a conversation, or trespassing if this act is done in the pursuit of the public interest, and even if he or she is found guilty of an offence, others will usually understand this as valid and will give their support. The public interest can literally keep a journalist out of jail, and it is not merely in the eye of the beholder. The Press Complaints Commission, for example, defines it as follows:

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

How did the News of the World justify publishing the Mosley story, which concerned legal sexual activity between consenting adults? Mosley’s behaviour, the trial was told, was “so debased, so depraved that the law will not offer it protection from disclosure”. The alleged Nazi elements of his activities were said to have mocked the Holocaust and, when combined with Mosley’s family background, contributed to a “disturbing situation” which was of “legitimate public interest”. Colin Myler, the paper’s editor, further claimed that exposure was justified because “as the head of Formula One Mr Mosley is the figurehead for the sport. He’s invited to the opening gala dinners, whether it’s with princes, prime ministers, kings, queens and presidents”. And the paper also argued that the beating which took place during the session amounted to a form of assault which it was legitimate to expose, and that Mosley’s relationship with the women amounted to illegal brothel-keeping.

Not only did the court reject every one of these arguments but it also exposed the cynicism with which they had been prepared. The assault argument, put forward only after Mosley sued, was dismissed by the judge as “artificial” and “verging on desperation”. The brothel-keeping charge, he noted, had been “thought up” by the paper’s lawyers, only to be “abandoned” before the trial’s end. As for the Nazi theme, it turned out to have no foundation in fact — and here the judge’s remarks revealed just how a public interest defence works in the hands of privacy invaders. He said he was ‘prepared to believe’ that the paper’s editors and reporters, “on what they had seen, thought there was a Nazi element – not least because that is what they wanted to believe. Indeed they needed to believe this in order to forge the somewhat tenuous link between the claimant [Mosley] and his father’s notorious activities more than half a century ago, and, secondly, to construct an arguable public interest defence …”

There was no cool assessment of the evidence, therefore, and no measured calculation of whether this was really one of those rare cases where intrusion into someone’s most private affairs could be justified because exposure makes the world a better place. This was about what they wanted and needed to believe if they were to publish –– and they were determined to publish. In other words, the story comes first and then, as the judge put it, you “construct an arguable public interest defence”. And if that defence doesn’t work you try another, and another, and another. This is not how journalists behave. They don’t “think up” public interest cases which are “artificial”, and they don’t allow themselves to believe something just because it suits them. They don’t abuse the entire ethical structure just so they can get whatever it is they know or believe they know into print. Certainly they get things wrong sometimes and they make misjudgments, but their general aim is to act ethically, just as it is to act truthfully.

Deception, muddy waters and the right to know

The suggestion that journalists are ethically driven often provokes sniggering, because many people believe the opposite. Yet journalists spend more of their time confronting and worrying about ethical questions than people in most other walks of life. Being accurate, balanced, fair and responsible while turning around a product that is acutely time-sensitive is demanding. You will not always agree with the decisions they make, but it is a simple fact that professional publications and professional journalists take these matters seriously though the procedures are often not formal. It is obvious, however, that no such scruples attended the preparation of the News of the World’s Mosley scoops, and it would be hard to exaggerate how far recklessness has damaged the name of journalism in recent years.

The coverage of the disappearance of Madeleine McCann in 2007, when a dozen national newspapers printed between them hundreds of grossly libellous stories on their front pages over a period of nearly a year, is probably the most shocking instance (though it was not a privacy issue). The Express papers were the worst offenders on that occasion, forced to pay a reported £550,000 in damages – and what soul-searching followed? What did the then editor of the Daily Express, Peter Hill, do to ensure it could not happen again? He famously told MPs: “I have reprimanded myself.” Journalists tend to laugh or shrug at this but they should take it seriously, because with those words Hill was mocking what they do for a living.

In both motivation and method, the Mosley case demonstrates, journalism is distinct from the industry of privacy invasion. But the privacy invaders prefer to muddy the water. When the News of the World lost that case it announced that “our press is less free today after this judgment” — appealing, by implication, to a noble British history and British tradition of press freedom. Now press freedom is an important matter and its history is certainly rich in noble deeds, but William Cobbett and John Wilkes did not suffer imprisonment and exile to enable journalists to bribe, bully and deceive their way into other people’s bedrooms. Nor, if you forgive the anachronism, did they have in mind the sort of people who would illegally hack into the mobile phone messages of the famous on the off-chance they might learn something titillating. These martyrs in the cause of press freedom had some meaningful conception that the press needed to be free to serve the public interest, and they did not see the public interest merely as a smokescreen.

You may by now be thinking that this is all very precious, and wouldn’t it be a dull world if we didn’t have these naughty boys in the tabloids blowing raspberries and shaking things up? It’s a comfortable attitude so long as you are not at risk of being a victim of the intrusion for which it is a cover, and so long as you don’t care that innocent people suffer for it. But spare a thought for those of us who teach the journalists of the future. What are we supposed to tell them? “Don’t worry about ethics because, so long as only a minority of people suffer from what you do, the majority will thank you for making the world a more diverting place”? That is not a viable attitude.

The privacy invaders use another version of that argument. They suggest that they are journalists, but the anarchic, irreverent, pushy part of the business, keeping the rest on its toes and preventing complacency. Again this isn’t viable. They don’t keep journalism virtuous; they drag it down, routinely showing contempt for the kind of boundaries they demand to see enforced in every other part of society. When the News of the World was convicted of illegally breaching Max Mosley’s privacy, it raised two fingers to the court, attacked the judge and the law and did nothing whatever to alter its habits. When the Express was caught libelling the McCanns, nobody was disciplined and nothing changed and, as we have seen, the editor mocked the idea that it should be otherwise. When Gordon Taylor, head of the Professional Footballers’ Association, produced evidence in 2008 that his phone had been hacked by the News of the World, the paper paid him £700,000 to shut up and go away.

For the privacy intruders the water can never be muddy enough. We are told that celebrities collaborate in their own exposure and it’s all part of the modern publicity industry. Often true, no doubt, but not always — and any journalist should be able to tell the difference between the person who wants to tell or sell a story and the person who has to be stalked, deceived and bullied for a story. We are told that public figures have an obligation to behave in certain ways because they are “role models”. Among the many problems with this are that the standards are arbitrarily set by editors and inconsistently applied, simply because the test is not what is right or wrong but what will sell newspapers on a given day. And editors who live by such dictates (and rely on dubious means to get their stories) are surely the last people we should rely on to judge what is appropriate conduct and what is not. We are also told that this is all about power and privilege, that the protection of privacy is a confidence trick designed to conceal from us the wrongdoing of top people. This is a con trick in itself. It just happens that editors aren’t usually interested in intruding upon the privacy of the poor, but when the time comes that they are —  say in the case of victims of crime or with bereaved families — they often show no mercy. Rich or poor, they will stitch you up if it suits them.

Paul Dacre, the editor of the Daily Mail, has offered a different and curious defence. In a speech in 2008 he argued: “… if mass-circulation newspapers, which also devote considerable space to reporting and analysis of public affairs, don’t have the freedom to write about scandal, I doubt whether they will retain their mass circulations with the obvious worrying implications for the democratic process”. This implies that professional intrusion into privacy is a price society has to pay if people are to be informed about things that are genuinely in the public interest. That can’t be right. It is true that the News of the World carries coverage of public affairs, indeed it occasionally prints front-page stories which are genuinely in the public interest — its coverage of match-fixing in cricket was a case in point. But journalists know that every story has to stand on its own ethical merits. Because you have published one worthy story does not mean that in the next one you have a licence to intrude. That is like saying that if you get 20 stories right you are free to commit a libel in the 21st, providing the story helps to keep your paper afloat. If the News of the World is to survive, it should pay its way by reporting in the public interest, full stop.

Let us say, then, that we are going to make a distinction between journalism and intruding in people’s privacy. Two questions immediately arise. First, where is the line between the two? And second, what difference does it make?

This is not simply a matter of drawing a line between tabloids and broadsheets, as they used to be, or between populars and qualities, as they were before that. In the first instance, we are identifying a kind of activity, but from there it is a short step to knowing who the people are who routinely engage in that activity, and which are the organisations that encourage, condone and trade by it. It is not all that complicated. The new non-journalist category, incidentally, will include some people not previously thought of as journalists, people like Glenn Mulcaire, Jonathan Rees and Steve Whittamore — private detectives who in their day were employed by the News of the World and who have all, incidentally, been convicted of crimes. Is this snobbish? Only if you believe there is something elitist about having ethical standards. Is it realistic? If we put aside the obfuscation, and make the effort to recognise these distinctive activities when we see them, yes. It really is not such an effort to tell the difference between those who want to inform and entertain and those who share the motivation of the former assistant news editor on the News of the World who told a colleague in 2002: “This is what we do. … We go out and destroy other people’s lives.” And it could be argued that making the distinction might strengthen the hand of those people in the relevant organisations who want to behave ethically.

An urgent matter

Will it make a difference? Certainly not in the sense that it will solve the privacy problem, and put an end to unjustified intrusion. That argument will run and run, and it is likely that no satisfactory boundaries will ever be fixed. Moreover the intruders, who are resourceful, will find ways to shield at least some of what they do. But the distinction will help to clarify the debate by separating those participants who have no real interest in ethical conduct or the public interest from those who do. It will more clearly expose the interests of those who argue that that law which allows scrutiny of the activities of a corporation must also allow scrutiny of the private life of an individual. And it will surely lend extra weight to the demands of journalists to be free to do what is genuinely the work of journalism.

This is an urgent matter. Because of the serial horrors — McCann, Mosley, hacking — the demand for statutory regulation of the press is growing. The Press Complaints Commission has failed to shore up standards or to convince the public that the press is sincere in wanting to regulate itself. If journalists, for reasons of nostalgia, inertia, confusion or misplaced loyalty, choose to keep swimming with the privacy intruders, they may well drown with them. If they push themselves free, then there is a better chance that we will find ways of protecting the freedoms that are vital to journalism.

Most of all, though, a clearer distinction will benefit the reading public. The more distance that opens up between ethical journalism and professional intrusion into privacy, the more the public will understand what it is getting and what it can trust. And that is in the public interest.

Brian Cathcart’s “Code breakers” appears in the new issue of Index on Censorship magazine, Privacy is dead! long live privacy, available now.

Brian Cathcart is professor of journalism at Kingston University and former media columnist at the New Statesman. He was a journalist at Reuters and the Independent. His books include The Case of Stephen Lawrence (Penguin). He is a regular contributor to Index online.

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When Glenn Mulcaire and Clive Goodman of the News of the World were jailed in 2007, the story told in court was that Mulcaire adopted a relatively crude procedure to gain access to the voicemail messages of victims. First he got their numbers. Then he tried the standard procedure for remote access to voicemails, and when required to enter a PIN, he used the default code, which he knew. If the victim had overrridden the default and created his or her own PIN, Mulcaire would then blag it. Blagging is a confidence trick: he would call the technical desk at the phone company pretending to be an employee working on a problem with that phone and he would ask for it to be returned to the default PIN. For this he needed his own employee password, although in the only instance that was closely explored in court in 2007 he simply used bluff and charm instead.

The idea that an outsider can have your mobile phone settings altered with such ease is pretty shocking, but it is also the case that a lot can go wrong for the hacker in this procedure if phone company staff are even passably vigilant. Perhaps we can imagine Mulcaire getting away with it five times in a few months, or even ten times. What is very hard to imagine is that he did so dozens or even hundreds of times over a year or so — and there is even a possibility that the number of victims runs into the thousands.

Nobody has that much charm. If Mulcaire was doing this systematically he had to have systematic access to PINs, just as he had to have systematic access to mobile phone numbers. (Remember, Sienna Miller changed her phone twice in one year because she suspected hacking, and each time Mulcaire swiftly got hold of both the new number and the voicemail PIN.) And if Mulcaire had systematic access to phone company data that raises the very worrying possibility that people inside those companies were knowingly helping him, and that would be corruption.

For some reason the Metropolitan Police do not seem to be in the least bit concerned or interested in the implications of this. They have been in possession of Mulcaire’s papers since August 2006 but there is no evidence that they have ever questioned the phone companies about their role. If, however, the files were given to another police force to investigate, perhaps something would be done.

One further note. People keep writing about Mulcaire, the private investigator, as if he was not an employee of News of the World. He was. For one thing, he worked for them year after year on a full-time, explicitly exclusive contract worth more than £100,000 a year, and for another, after he was released from jail they made a payment to him of £80,000 on the basis that he had been a full-time employee and was entitled to severance. (It must have been severance because otherwise it would have been a bribe to keep him silent, and it couldn’t have been that, could it?) Glenn Mulcaire may not have had a desk in the Wapping newsroom but he was no wayward, out-of-control freelance. He was on the News of the World staff.

Read more Brian Cathcart on Metgate here, here, here and here

Brian Cathcart teaches journalism at Kingston University London. Follow him on twitter at @BrianCathcart

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Latest revelations on the News of the World’s phone-hacking scandal puts the police under the spotlight, says Brian Cathcart. The Met should be taken off the case and the investigation reopened

We like to think that a good detective leaves no stone unturned in the pursuit of truth. In the Met’s phone-hacking investigation of 2006 it now seems that, on the contrary, almost every stone was left unturned, no matter how suspicious it looked. Miller has now turned one over all on her own, and what it reveals looks very bad for Scotland Yard.

Her claim document states that when the Met arrested the NoW hacker Glen Mulcaire in 2006, among the documents they seized were the following:

— the number, account number, pin number and password for not just one but three successive mobile telephones she used

— the times and dates of a number of mobile phone calls she made

— the contents of two voicemail messages left on her mobile phone

— the mobile phone number, pin number and password of her friend Archie Keswick

— the confidential mobile phone numbers of Jude Law and of his personal assistant

— the confidential mobile phone numbers of Miller’s publicist and the address and home telephone number of Miller’s mother

Just a reminder: voicemail hacking is illegal and all these materials were in the hands of a man employed full time by a national newspaper.

This impressive file should surely have been enough, you might think, to arouse the suspicions of even the least inquisitive of detectives. But no. No detective saw fit to phone or visit Miller either to alert her that she might have been a victim of a campaign of illegal intrusion or to inquire whether she had anything to say.

On the evidence of the claim document, if detectives had contacted her they would immediately have been presented with another impressive bundle of evidence. She could have told them about new messages that mysteriously appeared in her voicemail queue as messages already accessed, about messages that disappeared altogether, about her concerns in 2005-06 that her phone was being hacked, and about stories that appeared in the News of the World which she could not account for.

If detectives had then examined some back numbers of the News of the World, they would have found at least 11 articles relating to Miller whose origins they might have investigated in a phone-hacking inquiry.

But there was no investigation of Miller’s case at all. The Met contented themselves with a prosecution which implicated only one reporter at the News of the World — Clive Goodman — and left the rest of the organisation untouched. The offices of the paper for which Mulcaire did his hacking were never raided. No journalist other than Goodman was even questioned.

Worse, the Met sat on the Miller information. The claim document hints at the effect of hacking on Miller — her personal distress, her suspicions of close friends, her repeated changes of phone, her sense of being exposed. But the Met did not tell her what it knew.

She has had to go to court to secure documents giving her that information, and the Met released it with the greatest possible reluctance — just as it is currently employing every legal means to prevent many others from finding out whether they were hacked.

When the Commons select committee on the media looked at all this last year (and, to declare an interest, I was an adviser) it criticised in blunt terms the Met’s failure to even question three News of the World journalists — Neville Thurlbeck, Greg Miskiw and Ross Hindley aka Hall — in connection with a very simple paper trail of phone hacking evidence.

At that time, the Met’s position in this scandal appeared to be a secondary one, though very serious — it had conducted a bad investigation and failed to get to the bottom of the affair. The picture is now much darker than that.

Much fuller disclosure of the Mulcaire documents is now required, so that everyone who was targeted knows about it. And the Met needs to answer a lot of questions about why it failed to investigate the News of the World in a proper and timely fashion. At the very least, the force should be removed from all contact with the case and with the evidence, and a reinvestigation should be undertaken by outsiders.

Finally, it is worth noting that Miller’s claim document contains the strong suggestion that at least three more people associated with her have a case to sue the News of the World. About 20 people are already suing or are about to sue. For the newspaper too, it’s definitely not over.

Read more Brian Cathcart on Metgate here, here and here

Brian Cathcart teaches journalism at Kingston University London. Follow him on twitter at @BrianCathcart

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