What next for Metgate?

Why this story won’t go away.

When the New York Times published its report into the phone-tapping scandal last Wednesday, not many British commentators immediately realised its significance.

After a day or so when only a very few on Twitter and the blogosphere promoted the story, it was taken up by Tom Watson MP and then by John Prescott. By the time Prescott had taken advantage of the benefits of being a former deputy prime minister by airing his concerns on the Today programme, the story had legs.

Yesterday, the Home Secretary, Theresa May -- in a fairly unconvincing performance -- refused to announce an inquiry into the affair. This was in response to an urgent parliamentary question by Watson. The chairman of the House of Commons select committee on culture, media and sport has also said that his committee will not reopen the inquiry. Other bodies asked to look at it have so far not yet responded.

It would seem that the story has hit the buffers and lost all momentum; this seems to be a scandal with nowhere else to go.

However, such a view would be misconceived.

To see why, it is important to grasp the single most important element of the New York Times article -- an element that has not been addressed properly or been addressed at all, either by the Home Secretary or by the reported statements of the Metropolitan Police and News International.

The New York Times raised an important allegation about the relationship between the Metropolitan Police and News International. It is this allegation that demands investigation, as it goes to the confidence the public should place in the operational activities of the police and the conduct of the mainstream media.

Once it is realised that this is the nub of the issue, the seeming evasions and stonewalling of the Home Secretary, the Metropolitan Police and News International all become irrelevant and embarrassing to watch.

For example, the Home Secretary repeatedly said there is no "new" or "fresh" evidence. But that contention, which is incorrect in any case, starkly misses the point: the allegation is that the Metropolitan Police already holds a mass of evidence, that it has not properly examined or disclosed this evidence, and that this is because of its relationship with News International.

Here it is important to have a sense of the chronology of what happened. According to the New York Times and the excellent journalism of Nick Davies in the Guardian, a troubling sequence of events can be made out.

In November 2005, the royal household raises concerns about unauthorised access to mobile telephone messages. By January 2006, the Metropolitan Police are investigating these concerns. A mass of evidence is accumulated. In May 2006, Davies reports an internal Met document stating:

A vast number of unique voicemail numbers belonging to high-profile individuals (politicians, celebrities) have been identified as being accessed without authority. These may be the subject of a wider investigation in due course. A number of the targets of this unauthorised access have been informed.

However, in July 2006, a decision is made to "ring-fence" the investigation, even though the evidence points to widespread illegality. There is no good explanation for this. Only then are search warrants obtained, limited to searching only Glenn Mulcaire's home and Clive Goodman's desk at News International. The searches appear to have taken place on 8 August 2006. No search warrants are obtained in respect of any other reporters or editorial staff.

Nonetheless, a substantial amount of evidence is seized from the home of Mulcaire. According to the New York Times, this evidence included 2,978 complete or partial mobile-phone numbers and 91 secret (ie, non-factory-set) Pin codes. The New York Times and Davies report that detectives then came under further pressure to narrow their investigation, an investigation that had been "ring-fenced" even before the search warrants were obtained.

Only Mulcaire and Goodman are arrested. At this point the mass of evidence collected before the warrants were obtained, and the evidence seized from Mulcaire other than that relating to a handful of victims, are not followed up.

Moreover, almost none of those whose voice messages were unlawfully accessed were notified by the Metropolitan Police so that civil actions could be brought. Any civil action would have had to have been brought promptly, as the mobile telephone companies retain the relevant records for only a limited period. This has the effect -- intended or not -- of being to the advantage of the defendant in such civil actions, News International.

The alleged failure to properly consider the mass of evidence collected both before and as a result of the 8 August 2007 search warrants, when combined by the failure to alert potential victims of unlawful access to messages, raises grave concerns.

As the bulk of the evidence at issue is already possessed by the Metropolitan Police, the Home Secretary's protestations about there being no "new" or "fresh" evidence are, of course, hollow. The form of words she uses may even be cynical. But, in a way, the Home Secretary's motivation is irrelevant: her response to the allegation made by the New York Times is a non sequitur. The allegation will persist for the simple reason that it has not been addressed.

Writing for Index on Censorship, Brian Cathcart correctly observes:

As the New York Times points out, the relationship between the Metropolitan Police and News International is now a matter of public concern. Would any other organisation or corporation whose staff were under suspicion have received such gentle treatment at the hands of detectives and prosecutors?

So, where can the story go next?

The Metropolitan Police may reopen the investigation if presented with new evidence. They may even look properly at the evidence they already have.

More interestingly, current and impending criminal cases and civil actions may uncover further information. The excellent Scottish legal blog Love and Garbage points out that the upcoming Tommy Sheridan trial may require Andy Coulson to answer questions under oath about the conduct of the News of the World newsroom. Mark Lewis is bringing a claim for libel against the PCC and the Metropolitan Police, which may lead to further disclosures.

So, even without any engagement by a regulatory body or an official inquiry, it looks as if this story will not go away.

The interest of Labour politicians in exploiting the story to discomfit the current government may ensure that any new information gets wider attention.

In my view, an independent inquiry is required into the relationship between the Metropolitan Police and News International. This inquiry should be open and fair to all those involved, and it can be either a judicial inquiry or by a parliamentary committee. It could be by the Inspector of Constabulary or the PCC, though some may not have confidence in such an investigation.

There are sufficient grounds for such an inquiry. This is not say that there is sufficient evidence -- fresh or otherwise -- for a conviction, a prosecution, an arrest, or even an arrest warrant.

The threshold for an inquiry is quite different. The allegation is serious and consistent with the facts available; the allegation is made by a reputable and serious newspaper; there is witness and documentary evidence to support the allegation; and there is an overwhelming public interest in the allegation being addressed.

So, either the story can be closed down by skilful political and media manoeuvring, or it can be dealt with properly. And the prospect of more information coming to light over the coming months suggests that the first approach may not work this time.

David Allen Green is a lawyer and writer. His Jack of Kent blog was shortlisted for the Orwell Prize in 2010. He will now be blogging regularly for the New Statesman on legal and policy matters.

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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Harmful gender stereotypes in ads have real impact – so we're challenging them

The ASA must make sure future generations don't recoil at our commercials.

July’s been quite the month for gender in the news. From Jodie Whittaker’s casting in Doctor Who, to trains “so simple even women can drive them”, to how much the Beeb pays its female talent, gender issues have dominated. 

You might think it was an appropriate time for the Advertising Standards Authority (ASA) to launch our own contribution to the debate, Depictions, Perceptions and Harm: a report on gender stereotypes in advertising, the result of more than a year’s careful scrutiny of the evidence base.

Our report makes the case that, while most ads (and the businesses behind them) are getting it right when it comes to avoiding damaging gender stereotypes, the evidence suggests that some could do with reigning it in a little. Specifically, it argues that some ads can contribute to real world harms in the way they portray gender roles and characteristics.

We’re not talking here about ads that show a woman doing the cleaning or a man the DIY. It would be most odd if advertisers couldn’t depict a woman doing the family shop or a man mowing the lawn. Ads cannot be divorced from reality.

What we’re talking about is ads that go significantly further by, for example, suggesting through their content and context that it’s a mum’s sole duty to tidy up after her family, who’ve just trashed the house. Or that an activity or career is inappropriate for a girl because it’s the preserve of men. Or that boys are not “proper” boys if they’re not strong and stoical. Or that men are hopeless at simple parental or household tasks because they’re, well...men.

Advertising is only a small contributor to gender stereotyping, but a contributor it is. And there’s ever greater recognition of the harms that can result from gender stereotyping. Put simply, gender stereotypes can lead us to have a narrower sense of ourselves – how we can behave, who we can be, the opportunities we can take, the decisions we can make. And they can lead other people to have a narrower sense of us too. 

That can affect individuals, whatever their gender. It can affect the economy: we have a shortage of engineers in this country, in part, says the UK’s National Academy of Engineering, because many women don’t see it as a career for them. And it can affect our society as a whole.

Many businesses get this already. A few weeks ago, UN Women and Unilever announced the global launch of Unstereotype Alliance, with some of the world’s biggest companies, including Proctor & Gamble, Mars, Diageo, Facebook and Google signing up. Advertising agencies like JWT and UM have very recently published their own research, further shining the spotlight on gender stereotyping in advertising. 

At the ASA, we see our UK work as a complement to an increasingly global response to the issue. And we’re doing it with broad support from the UK advertising industry: the Committees of Advertising Practice (CAP) – the industry bodies which author the UK Advertising Codes that we administer – have been very closely involved in our work and will now flesh out the standards we need to help advertisers stay on the right side of the line.

Needless to say, our report has attracted a fair amount of comment. And commentators have made some interesting and important arguments. Take my “ads cannot be divorced from reality” point above. Clearly we – the UK advertising regulator - must take into account the way things are, but what should we do if, for example, an ad is reflecting a part of society as it is now, but that part is not fair and equal? 

The ad might simply be mirroring the way things are, but at a time when many people in our society, including through public policy and equality laws, are trying to mould it into something different. If we reign in the more extreme examples, are we being social engineers? Or are we simply taking a small step in redressing the imbalance in a society where the drip, drip, drip of gender stereotyping over many years has, itself, been social engineering. And social engineering which, ironically, has left us with too few engineers.

Read more: Why new rules on gender stereotyping in ads benefit men, too

The report gave news outlets a chance to run plenty of well-known ads from yesteryear. Fairy Liquid, Shake 'n' Vac and some real “even a woman can open it”-type horrors from decades ago. For some, that was an opportunity to make the point that ads really were sexist back then, but everything’s fine on the gender stereotyping front today. That argument shows a real lack of imagination. 

History has not stopped. If we’re looking back at ads of 50 years ago and marvelling at how we thought they were OK back then, despite knowing they were products of their time, won’t our children and grandchildren be doing exactly the same thing in 50 years’ time? What “norms” now will seem antiquated and unpleasant in the future? We think the evidence points to some portrayals of gender roles and characteristics being precisely such norms, excused by some today on the basis that that’s just the way it is.

Our report signals that change is coming. CAP will now work on the standards so we can pin down the rules and official guidance. We don’t want to catch advertisers out, so we and CAP will work hard to provide as much advice and training as we can, so they can get their ads right in the first place. And from next year, we at the ASA will make sure those standards are followed, taking care that our regulation is balanced and wholly respectful of the public’s desire to continue to see creative ads that are relevant, entertaining and informative. 

You won’t see a sea-change in the ads that appear, but we hope to smooth some of the rougher edges. This is a small but important step in making sure modern society is better represented in ads.

Guy Parker is CEO of the ASA