The Phone Hacking Scandal: Global Implications
July 30, 2012
On July 24, 2012, after eight months of evidence at the Royal Courts of Justice in London, the Leveson Inquiry's formal evidence-gathering concluded. Set up to investigate abuses surrounding the News International hacking scandal, it also assessed "the culture, practice and ethics of the British press." Some individuals have been charged, others are suing, and perhaps more criminal prosecutions will follow—as might a new regulatory or legislative framework for the UK media. Judge Sir Brian Leveson has been given unprecedented powers by Prime Minister David Cameron to make proposals and "ways forward for the future," which he will reveal in the coming weeks and months.
This formal battleground for media ethics centers on traditional print media—or more specifically, tabloid newspapers in the UK—but it is nonetheless part of a larger debate on the practical realities of a rapidly changing industry. As the business of the media has been changed by the advent of the internet and the decline in advertising, newsgathering methods have changed too. Perhaps we need new ethical standards to keep up with realities of social media, technology, how we consume news, and from where.
Although any recommendations coming out of the Leveson Inquiry will be addressed only to the UK, nevertheless they will surely have international implications as other countries watch the debate. Any legislative or regulatory outcomes for the UK could also have consequences for international freedom of the press.
The Leveson Inquiry
The Inquiry saw over 650 hearings by police, politicians, and private citizens, and over 6,000 pages of evidence. Its remit is not only to investigate the role of Rupert Murdoch's tabloid newspapers—the News of the World [NoW] and The Sun—in the phone hacking scandal, but to investigate the bribery and corruption of senior police and politicians and the cozy relationship between Murdoch, his newspapers, and the ruling establishment—the unique 'politico-media' complex.
We now know that editors and reporters at NoW—an 168-year-old tabloid that Murdoch shut down weeks after the scandal broke in July last year—presided over a large-scale policy of hacking cell phones and computers belonging to celebrities, politicians, and private citizens. High-profile victims include Angelina Jolie and Brad Pitt, members of the royal family, and J.K. Rowling. Notebooks recovered from private investigator Glenn Mulcaire (himself the target of an investigation in 2007) revealed over 5,000 potential hacking targets—and showed that over 2,000 of them had become actual targets.
Perhaps the most striking incident was the revelation that someone had hacked into missing schoolgirl Milly Dowler's voicemail in 2002 and deleted old messages when her mailbox was full—giving her parents false hope that she was alive. Her body was found months later. (The individual responsible has not been found).
News International CEO Rebekah Brooks, David Cameron's former Communications Director Andy Coulson, and six others—including Glenn Mulcaire—will be charged with conspiring to hack phones and could face jail time. Many more victims are suing News International.
"Berserk and Shouty"
Some of the public believe 'Hackgate' is an endemic media problem, symptomatic of the UK tabloid media's uniquely competitive market and unscrupulous practices. Circulation is declining, but tabloids still have huge reach and political power. "No other major country has huge national tabloids with deep pockets and that are locked in fierce competition," says Edward Schumacher Matos, National Public Radio's ombudsman and a professor at Columbia Journalism School. Lauren Collins's New Yorker piece on the rise of the Daily Mail makes this droll observation: "In Britain, unlike in the United States, television tends to be a dignified affair, while print is berserk and shouty."
Murdoch certainly made this argument, that it is a media problem, in his own testimony. But media professionals say it was a Murdoch problem. The Guardian editor Alan Rusbridger told the Inquiry that he found, during his paper's investigation into the hacking, that Murdoch's power had cowed politicians and the industry regulator: "The Murdoch influence, power, money, dominance and reputation was such that it seemed to confer a form of immunity from scrutiny."
The truth probably lies in the middle—precisely where, and what to do about it, is up to Leveson. But journalists would argue that calling for media reform misses the point: 'Hackgate' was not the result of obscure or lacking regulation, or even unclear ethical guidelines—it was an obvious breach of privacy and ethics. On the legal front, phone tapping and hacking contravenes the Regulation of Investigatory Powers Act (RIPA) 2000—which makes those actions a criminal offence unless they are carried out by police or intelligence agencies. Former NoW royal correspondent Clive Goodman was jailed under this legislation in 2007 for tapping phones belonging to members of the royal family.
Beyond the fact that UK broadsheets and other media outlets differ greatly in standard, quality, and reputation from their tabloid or 'red-top' counterparts, many journalists feel that any stringent reform would be unfair—making an industry share the blame for the crimes of a minority. Some abuses, like police bribery, have been uncovered at other newspapers, and NoW's defense is that there was a widespread culture of questionable information-gathering. Regardless, the Inquiry revealed that over 2,000 requests for Mulcaire to intercept phone messages came from just four journalists at NoW.
The justification cited by those involved was that the information published was in the "public interest." Journalists often have to balance privacy and public interest—and it is never an easy task. It is very hard to define "public interest." As the Guardian's Roy Greenslade puts it, "the boundary of acceptable practice is often determined not by the means used but by the nature of what is uncovered." Some methods, while questionable, can be justified. Privacy is often the first casualty, but there is some understanding that the extent of the invasion must correlate with the degree of public interest. With Hackgate, a small group enlarged the usually small subset of 'public interest' (e.g. government corruption) to include the huge field of what is 'of interest to the public.' (e.g. Hugh Grant's love life). But phone hacking is not a grey area: it is so clearly illegal, and they knew it—which is why it was covered up for so long. Most importantly, there is no 'public interest' defense for contravening RIPA.
"A glance at the UK's Press Complains Commission code of conduct—and the equivalent Ofcom [the UK's media watchdog] rules and BBC guidelines—should be sufficient to convince an impartial observer that the basic principles surrounding journalists' behavior are sound," says Andrew Knight, a senior lecturer at London School of Journalism, and Press Association trainer, who has had a long journalism career in Scotland and England.
The problem in this case was enforcement. "One important issue to have emerged during the Inquiry was why illegal and unethical practices were allowed to continue unhindered when editors and staff involved were fully aware of the law and the PCC's guidelines," says Knight.
It has been pointed out that Rebekah Brooks, for example, was not a trained journalist, and that she achieved her sharp-elbowed rise to CEO of News International (and into Rupert Murdoch's inner cabal) without any real reporting experience. It would be unfair to blame Brooks entirely, but her lack of experience in the field could certainly explain, if not a lack of awareness of good journalism conduct, at least a lack of respect for it.
Anticipating possible measures Leveson might recommend, media professionals are worried that he will be so repulsed by the parade of worst practices that the Inquiry will "throw out the baby with the dirty bathwater" and produce a "more stringent outcome than wise," wrote Michael White in the Guardian's Politics blog—measures that would infringe press freedom.
Some options include self-regulation by the Press Complaints Commission and the government giving the PCC "teeth" with legislative force. A press tribunal has also been suggested. Lord Hunt of the PCC proposes a contract that all media outlets would have to sign, any breach of which could be punished. Another argument is that legislation could be devised that actually increases freedom of the press, giving the UK something along the lines of the US's First Amendment and enshrining a "watchdog" or accountability function.
"I don't suspect that it will be the end of the world if the right kind of limited legislation is devised," says Schumacher-Matos. "Though I have to admit that Lord Hunt's contract law proposal is novel and would seem to be sufficient."
There is some consensus that the tabloid press do need reining in. "Corrupt journalism is the enemy of free expression," wrote Brian Cathcart, a journalism professor at Kingston University. "It places us at the mercy of monopolists, bullies and lawbreakers. We surely don't want that."
Then, there is the view that we must take the 'bad' press behavior in the interests of the 'good:' robust investigative journalism. Education Secretary and former journalist Michael Gove stated earlier this year that a few slips in standards were the price we had to pay for a "precious" freedom of speech. Some think Gove, a Murdoch enthusiast, was cynically trying to protect the Conservative party from any fallout over the scandal. For his part, Leveson threatened to quit if Ministers did not stop passing comment on his Inquiry.
Whatever Gove's motivations, he made the point that already an investigatory zeal was being "chilled," with reporters shying away from sensitive stories—and he is not alone in saying this.
The police, who are highly implicated in the Leveson Inquiry, have used the scandal to "claw back control" of information, wrote Sandra Laville in the Guardian.
John F. Burns wrote in The New York Times that there has been a chilling effect in UK newsrooms, and that charges resulting from the Inquiry show a new intolerance for unsavory journalism practices and 'checkbook journalism'—paying for scoops. While it is a good thing if widespread unethical methods stop, the investigative ends of this style of journalism—if not the means—has its defenders, like Justice Minister Ken Clarke, who told the Inquiry that statutory controls are not necessary.
"In newspaper columns, and in testimony at the [Leveson] inquiry," writes Burns, "they have argued against imposing statutory restraints to quiet the tabloids and protect secrets—personal, political and corporate—that only an irreverent press is likely to ferret out."
After Hackgate, some may be surprised to learn that the UK's privacy laws are quite stringent. Privacy law has been the one area of UK law to see significant changes in the past few years, with judges interpreting the individual's right to privacy (Article 8 of the European Convention of Human Rights) balanced against Article 10 (the right to free speech).
Judges have actually leaned too far towards privacy. Take court-issued injunctions that prevent claimants from being identified, or even reporting that an injunction exists. Injunctions were originally meant for witnesses or defendants in trials whose lives would be endangered, like child abusers, but have now been used by a spate of celebrities to cover up details of their illicit affairs. David Cameron said recently that he was "uncomfortable" with the sheer amount of injunctions being granted (although Twitter has rendered some of them pointless). MailOnline publisher Martin Clarke told Leveson that the UK's stringent media standards only allowed the MailOnline to publish photos of Pippa Middleton in public places. U.S. magazines and websites have no such restrictions. Any more regulation, he said, would harm UK websites.
In the U.S., press freedom's place in the First Amendment acts as a built-in default towards freedom of speech in privacy and libel cases. A public person has to prove a published defamatory statement false. In the UK, on the other hand, the onus is on the newspaper. As a result, libel suits, while costly, are more winnable in the UK, leading to 'libel tourism.'
Keeping our eye on press freedom is crucial in the current climate. While indices like the Global Peace Index say we are more peaceful, alarmingly, the current trend shows we are moving away from freedom of speech. Reporters Without Borders' Press Freedom Index found that the scores are lower overall. The Leveson Inquiry has already caused the UK to which slip from 19th to 28th on the index. According to data from the Committee to Protect Journalists [CPJ], the world has become increasingly dangerous for journalists in recent decades.
"Britain's place in democratic history gives it special influence as a model," says Schumacher-Matos. What happens at Leveson, and of course the UK, could have implications for the global discussion of media ethics and press freedom.
"The UK is particularly in the spotlight," says Natalie Samarasinghe, deputy director for policy and communications at the United Nations Association - UK branch. This is due to a number of factors, she explains: Its colonial footprint, the English language's global reach, the UK's privileged position in global decision-making structures, and because it positions itself to be—and frequently is—a genuine leader in human rights.
On a recent trip to London, Schumacher-Matos was told by parliamentarians, diplomats, government officials, and academic researchers that they have been surprised by the great number of requests they have received for information on the Leveson Inquiry and potential regulatory outcomes. Matos says these requests have come not just from the Commonwealth countries, but regions far from the normal sphere of British influence, such as China, Venezuela, and others whose interests are "less than benign when it comes to press freedom."
"The fear is that the nuances and limits in any British regulatory action will be conveniently overlooked to justify more stringent press controls in these countries. There also is an attitude of 'we told you so' about the need for controls in some," says Schumacher-Matos.
One example is Sri Lanka, which, although a democracy, is in the grips of a media crackdown. In the end phases of the civil war against the Tamil Tigers, Sri Lanka expelled foreign press and a sustained media blackout obscures a humanitarian crisis and increasingly, incidents of rape. Journalists have been assassinated.
"The Government of Sri Lanka certainly needs no excuse to clamp down on the press," says Samarasinghe. "Now that the war-time argument of 'you're with us or against us' is over, they are still finding plenty of reasons to harass media outlets, legally and physically."
Recently, a new media law was issued, muzzling newspapers and websites. According to the Sri Lanka Campaign, the government has been particularly strident about preventing internet access and freedom of information.
"That said, I do believe that [Leveson] will have an impact in Sri Lanka—as a target for anti-Western propaganda, a justification for harsh media impositions, and a response to criticisms on this front," says Samarasinghe.
The hacking scandal and 'lack of ethics' in the British media have already been evoked by Sri Lanka's Defense Minister Gota Rajapaksa in his dismissal of the Channel 4 'Killing Fields' documentary as peddling lies.
"The irony is that the Sri Lankan government has been accused on many occasions of spying on the media and asking the police and intelligence agencies to bug offices and tap phones," says Samarasinghe.
The Sunday Leader, the country's opposition paper, wrote:
"What is important to Sri Lanka, far removed from Britain in turmoil, is the impact the fallout of the Murdoch empire in Britain may have on this island. Even though Sri Lankan 'nationalists' are usually hostile to most things British, particularly in present times, British examples whether good or bad could serve as an excuse to be emulated: 'They are doing it even in Britain' could be trotted out as an excuse."
Samarasinghe says it is highly likely that internet controls proposed in both the UK and U.S. will be welcomed by Russia's President Putin and Sri Lanka's Defense Minister Rajapaksa, because they'll be able to say they are just doing what everyone else is.
Freedom of speech is a human right. We have to hope that journalists around the world, many of whom risk their lives to report for the public interest, will be able to operate safely. Therefore countries with robust press freedom must be sure not to throw out the baby with the dirty bathwater if they make domestic reforms or adjustments to comply with ethical standards and to meet the rapidly changing realities of the media.
"During the inquiry, there has been a growing discussion among responsible publishers about the need to ensure their staff are fully educated about media law and ethics—including privacy law," says Knight. Schumacher-Matos also argues that rules of ethics should be taught from the ground up. Of course, teaching ethics will not be a silver bullet. A rudimentary knowledge of ethics might not have stopped those responsible in Hackgate—but it would be a good start to prevent future breaches of ethics.
While it is a good thing that Murdoch's empire had a form of comeuppance, there may be a higher cost to the UK press as a whole. The fallout from Hackgate shows that the unethical and illegal conduct of a few has potential to change regulatory outcomes for the entire industry—which has its own implications for global press freedom. The focus on media that Leveson has brought is an opportunity to remember the importance of an ethical, but also a robust, press. A nuanced response by Leveson should ensure that governments remember a free press is essential to the function of democracy.
Many governments need no excuse to suppress media freedom. So it is all the more crucial that journalists who are fortunate enough to work in countries that respect freedom of the press don't give their own governments an excuse to follow suit, or to forget why the press should be free.