Sunday, February 08, 2004

The Hutton Report : Law, Politics, Truth and Freedom of the Press

The Hutton Report : Law, Politics, Truth and Freedom of the Press

What is True and What is False in Reporting by the Press ?

What is true in reports by the news media and what is false? In the battle for viewers, readers and subscribers, to what degree has unmitigated "hype" and "yellow journalism" become a much too prevalent news form?
news extra
What is Really True in the News ?

Has the Media Lost its High Standards of Reporting ?

This writer has been increasingly put off by biased journalism (I am not alone - see One Man & His Blog) and indeed - as proven e.g. for one reporter at the New York Times - intentionally falsified reporting by the major news media. "Fair and balanced" has become as much of a myth in news reporting as "all the news that's fit to print". As noted by Dave Aeillo at CTDATA about the New York Times in discussing the Times extremist reporting on Augusta National Golf Club:

"The problem that The New York Times is experiencing is part and parcel of its editors' disingenuousness. The motto shouldn't be All the News That's Fit to Print-- it should be All the Left Wing Opinions that Are Fit To Print, or All the News That Fits Our Agenda."

For the vast population of golfers and non-golfers, Augusta is a non-issue. It is only an issue for political extremists.

BBC reporting and the War in Iraq

The New York Times is not the only "once reputable" news reporting outfit to come under recent heavy criticism. The ordinarily and heavily "mainstream-entrenched" BBC in the United Kingdom has received a legal rebuke without parallel in modern journalistic history.

The British government had reported its belief, prior to the war and based on a high source in the Iraqi army,

"[T]hat Iraqi forces could use chemical or biological weapons on the battlefield against invading forces in less than 45 minutes.... Sir Richard Dearlove, head of MI6, told the Hutton inquiry that the information contained in the dossier relating to the 45-minute claim came from a single "established and reliable" source serving as a senior officer in the Iraqi army."

The BBC reported that this claim - as repeated by the government - was "knowingly" false. This report by the BBC then marked the headlines about the war for some time. Lord Hutton found that the BBC and not the government erred.

The Hutton Report finds BBC reporting to be "Unfounded" and "Defective"

The Hutton Report is an inquiry by Lord Hutton, a law lord in the United Kingdom, regarding the propriety of BBC news reporting which contains what Lord Hutton found to be false allegations against the government on issues involving the war in Iraq, including false BBC statements about the government's alleged role in the death of weapons expert David Kelly.

As a result of this report, BBC Chairman Gavyn Davies resigned, followed by the resignation of Greg Dyke, BBC director general. As written by the BBC in "BBC chairman quits over Hutton":

"He quit after Lord Hutton said the suggestion in BBC reports that the government "sexed up" its dossier on Iraq's weapons with unreliable intelligence was 'unfounded'.

Lord Hutton also criticised 'defective' BBC editorial processes over defence correspondent Andrew Gilligan's broadcasts of the claims on the Today programme."

The Hutton Report exonerates the Government - Did Blair and Bush lie to Us? - No

Prime Minister Tony Blair is quoted as saying that:

"The allegation that I or anybody else lied to the House or deliberately misled the country by falsifying intelligence of weapons of mass destruction is itself the real lie.... I simply ask that those that have made it and repeated it over all these months now withdraw it fully, openly and clearly."

Obviously and logically, similar claims brought against President Bush challenging the information basis and subsequent motives for the war are thus equally unfounded. Moreover, we find that the reporting of the war at the New York Times and at CNN was equally "defective" and one-sided, tending to the generation of political "controversy" and "arm-chair quarterbacking" rather than concentrating on a "fair and impartial presentation" of actual events. Undesired political and personal commentaries by reporters often prevail in situations where nuts-and-bolts facts are required by the public.

Is the Hutton Report Falling on Deaf Ears ?

Numerous instances can be cited that the lessons which should have been learned from these events have still not been learned.

As written in a user's opinion posted - intentionally - by the BBC (who said they would otherwise not comment on the Hutton Report) at the BBC's own website, quoting instead what we would regard as a defiant stance of a reader:

"Democracy in this country owes more to the BBC than it does to this government - Steve Price, Overton, UK"

That of course is not the issue. The actual issue is simply that negligent and reckless FALSE reporting by news media is not permitted, regardless of their past track record.

A Misreading of the Law ?

An extremely critical review of the Hutton Report is found at "A Misreading of the Law" by Conor Gearty at the London Review of Books (we subscribe to their newsletter, but this review is not one of our favorites). Gearty writes:

Imagine a BBC that checks all its output all the time for potentially 'false accusations of fact impugning the integrity of others, including politicians', and refuses to broadcast anything that might conceivably pose such a risk. And there is no reason to stop at the BBC: Lord Hutton's supposed rule must apply generally. So we must also imagine the kind of 'democratic society' we would have if all television, radio and print news organisations followed with Huttonesque rigour what Lord Hutton says is the law. There would be calm, certainly, and quiet reportage of ministerial achievement, but there would not be democracy as we know it.

The Right to Impugn Integrity based on Sloppy Research ?

The Law Pundit disagrees completely with Gearty's opinion. In our view of the law, NO MEDIA has the right to falsely impugn the integrity of others - and if they do not check their work conscientiously and still publish such things falsely, then they should be liable. No one is denying news media the right to engage in CRITICAL reporting - but the Hutton Report is denying FALSE reporting resulting from improperly researched reporting (recall, RESEARCH is the specialty of the Law Pundit.) If your research does not support what you write to be a fact - then do not impugn another's integrity. That seems to be a clear and laudable legal standard. It surely cuts a lot of the irrelevant ad hominem out of news reporting.

Someone who has his integrity falsely impugned in print has a difficult time reestablishing his or her reputation as the damage is normally done and everyone is on to different things and new events. See here for a Guardian article by David Clark for proof that not even the Hutton Report is stopping what is clearly politically-motivated reporting. Slashes on the integrity and intelligence of other persons continue on unabated. That article is not "reporting" - it is one man's vituperative opinion. It is a lambasting of "persons", rather than a fair and impartial reporting of facts and issues. Should that kind of lambasting be permitted? No, I think not, but it is common at news media such as the Guardian.

The prospect of bringing a libel suit against news media in order to obtain a printed retraction has almost no chilling effect on the publication of false and maligning opinions. The media is powerful and individuals less so. Here at least the government was battling the media, i.e. two large powerful forces were pitted one against the other. But imagine the BBC doing the same thing to John Q. Citizen that it tried to do to Tony Blair and his government. John Q. Citizen's reputation would be irrevocably destroyed, without any chance of resurrection - even Blair is still having trouble, because the news media has so firmly implanted falsehoods in the brains of the public. Indeed, one must ask WHY the news media would even attempt to impugn someone's integrity if the complete well-researched facts did not support it? The only answer can be that the media is pushing THEIR own political agenda. They are trying to profit at another's expense and to gain an advantage for their causes against the causes advanced by others.

Hence, contrary to Gearty, we say YES to "democracy" and to "freedom of speech and the press".

But we say NO to any press right to impugn the integrity of others through sloppy reporting. That is not what we regard to be a foundation of democracy. Reputations are easily destroyed by the press - but this is not a constitutional right.

The Major Findings of the Hutton Report

The major findings of the Hutton Report in abbreviated form are found here at the Guardian and here at the BBC.

The Full Hutton Report

The full Hutton Report is available

1) as a book at online booksellers as Report of the Inquiry into the Circumstances Surrounding the Death of Dr David Kelly CMG by Lord Hutton (published by Stationery, 740 pages, £70.00), and

2) online at Hutton Inquiry at Report and Rulings

Lord Hutton's Main Rulings in the Report

Lord Hutton's rulings in the "Hutton Report" find false reporting by the BBC with respect to matters involving the war in Iraq:

The Questions

The major questions raised were, in the words of Lord Hutton:

"(1) Was there a failure by the BBC to exercise proper editorial control over Mr Gilligan's broadcasts on the Today programme on 29 May?

(2) Was the BBC management at fault in failing to investigate properly and adequately the Government's complaints that the report was false that the Government probably knew that the 45 minutes claim was wrong even before it decided to put it in the dossier?

(3) Was there a failure by BBC management to inform the Governors of the BBC of the extent of editorial concerns about Mr Gilligan's broadcasts in relation to the 45 minutes claim?

(4) Whilst the Governors were under a duty to protect the independence of the BBC from Government interference, were the Governors at fault in failing to investigate properly and adequately the Government's complaints about the report on the Today programme in relation to the 45 minutes claim, and were the Governors too ready to accept the opinion of BBC management that the broadcasts were proper ones for the Today programme to make."

The Answers

The answers to these questions by Lord Hutton - after interviewing 74 witnesses in 25 days - are:

"(1) The allegations reported by Mr Gilligan on the BBC Today programme on 29 May 2003 that the Government probably knew that the 45 minutes claim was wrong or questionable before the dossier was published and that it was not inserted in the first draft of the dossier because it only came from one source and the intelligence agencies did not really believe it was necessarily true, were unfounded.

(2) The communication by the media of information (including information obtained by investigative reporters) on matters of public interest and importance is a vital part of life in a democratic society. However the right to communicate such information is subject to the qualification (which itself exists for the benefit of a democratic society) that false accusations of fact impugning the integrity of others, including politicians, should not be made by the media. Where a reporter is intending to broadcast or publish information impugning the integrity of others the management of his broadcasting company or newspaper should ensure that a system is in place whereby his editor or editors give careful consideration to the wording of the report and to whether it is right in all the circumstances to broadcast or publish it. The allegations that Mr Gilligan was intending to broadcast in respect of the Government and the preparation of the dossier were very grave allegations in relation to a subject of great importance and I consider that the editorial system which the BBC permitted was defective in that Mr Gilligan was allowed to broadcast his report at 6.07am without editors having seen a script of what he was going to say and having considered whether it should be approved.

(3) The BBC management was at fault in the following respects in failing to investigate properly the Government's complaints that the report in the 6.07am broadcast was false that the Government probably knew that the 45 minutes claim was wrong even before it decided to put it in the dossier. The BBC management failed, before Mr Sambrook wrote his letter of 27 June 2003 to Mr Campbell, to make an examination of Mr Gilligan's notes on his personal organiser of his meeting with Dr Kelly to see if they supported the allegations which he had reported in his broadcast at 6.07am. When the BBC management did look at Mr Gilligan's notes after 27 June it failed to appreciate that the notes did not fully support the most serious of the allegations which he had reported in the 6.07am broadcast, and it therefore failed to draw the attention of the Governors to the lack of support in the notes for the most serious of the allegations.

(4) The e-mail sent by Mr Kevin Marsh, the editor of the Today programme on 27 June 2003 to Mr Stephen Mitchell, the Head of Radio News, which was critical of Mr Gilligan's method of reporting, and which referred to Mr Gilligan's "loose use of language and lack of judgment in some of his phraseology" and referred also to "the loose and in some ways distant relationship he's been allowed to have with Today," was clearly relevant to the complaints which the Government were making about his broadcasts on 29 May, and the lack of knowledge on the part of Mr Sambrook, the Director of News, and the Governors of this critical e-mail shows a defect in the operation of the BBC's management system for the consideration of complaints in respect of broadcasts.

(5) The Governors were right to take the view that it was their duty to protect the independence of the BBC against attacks by the Government and Mr Campbell's complaints were being expressed in exceptionally strong terms which raised very considerably the temperature of the dispute between the Government and the BBC. However Mr Campbell's allegation that large parts of the BBC had an anti-war agenda in his evidence to the FAC was only one part of his evidence. The Government's concern about Mr Gilligan's broadcasts on 29 May was a separate issue about which specific complaints had been made by the Government. Therefore the Governors should have recognised more fully than they did that their duty to protect the independence of the BBC was not incompatible with giving proper consideration to whether there was validity in the Government's complaints, no matter how strongly worded by Mr Campbell, that the allegations against its integrity reported in Mr Gilligan's broadcasts were unfounded and the Governors failed to give this issue proper consideration. The view taken by the Governors, as explained in evidence by Mr Gavyn Davies, the Chairman of the Board of Governors, that they had to rely on the BBC management to investigate and assess whether Mr Gilligan's source was reliable and credible and that it was not for them as Governors to investigate whether the allegations reported were themselves accurate, is a view which is understandable. However this was not the correct view for the Governors to take because the Government had stated to the BBC in clear terms, as had Mr Campbell to the FAC, that the report that the Government probably knew that the 45 minutes claim was wrong was untruthful, and this denial was made with the authority of the Prime Minister and the Chairman of the JIC. In those circumstances, rather than relying on the assurances of BBC management, I consider that the Governors themselves should have made more detailed investigations into the extent to which Mr Gilligan's notes supported his report. If they had done this they would probably have discovered that the notes did not support the allegation that the Government knew that the 45 minutes claim was probably wrong, and the Governors should then have questioned whether it was right for the BBC to maintain that it was in the public interest to broadcast the allegation in Mr Gilligan's report and to rely on Mr Gilligan's assurances that his report was accurate. Therefore in the very unusual and specific circumstances relating to Mr Gilligan's broadcasts, the Governors are to be criticised for themselves failing to make more detailed investigations into whether this allegation reported by Mr Gilligan was properly supported by his notes and for failing to give proper and adequate consideration to whether the BBC should publicly acknowledge that this very grave allegation should not have been broadcast."
[emphasis supplied]

Two Additional Issues regarding Dr. Kelly

Lord Hutton also ruled on two additional issues:

"First, did the Government behave in a way which was dishonourable or underhand or duplicitous in revealing Dr Kelly's name to the media, thereby subjecting him to the pressure and stress which were bound to arise from being placed in the media spotlight?

Secondly, if the Government did not behave in a way which was dishonourable or underhand or duplicitous in revealing Dr Kelly's name to the media, did the Government fail to take proper steps to help and protect Dr Kelly in the difficult position in which he found himself?"

Lord Hutton writes:

"Having concluded that the Government did not behave in a dishonourable or underhand or duplicitous way in revealing Dr Kelly's name to the media I then consider the second issue, whether the Government failed to take proper steps to help and protect Dr Kelly in the difficult position in which he found himself. In paragraph 430 I state that the evidence has satisfied me that officials in the MoD did give some consideration to Dr Kelly's welfare and did take some steps to help him, and I set out the steps which were taken by a number of officials."

Blogs Referring to the Hutton Report

Blogs that have referred to the Hutton Report are:

Jay Currie

Currie has numerous postings on the Hutton report and a link to Let It Bleed.



KWSnet Weblog

"There was criticism, condemnation even. But almost all was aimed at the BBC.

For the Government, there was just the tiniest of slaps on the wrist for a few underlings at the Ministry of Defence.

For all the legal-ese, the precise and impartial weighing up of a mountain of evidence given by 74 witnesses over 25 days, it was clear as he presented his findings that Lord Hutton, the former Lord Chief Justice of Northern Ireland and a respected law lord who retired two weeks ago, is much more at home in the world of civil servants and politicians than that of journalists."

BaraksBlog writes "Now hold on a minute!" in commenting on Clark's article in the Guardian.

The content of this link at the Guardian, as linked from FullSpeed is, well... you decide.

Ofcom Watch speculates whether the BBC is ripe for government regulation.

Hutton's findings will strengthen BBC critics who say the broadcaster should fall under the oversight of media regulator Ofcom. Conservative leader Michael Howard said the case for outside regulation of the BBC "has never been stronger".

Lincoln Plawg (PLawG=Politics and Law Blog) points to a link which may be the definitive discussion of investigative reporting in this context for news media and reporters, an article by Jeffrey A. Dvorkin, Ombudsman, National Public Radio (NPR), entitled "Sentence First. Verdict Afterwards?"

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