by Stephen Tall on November 25, 2012
Lord Justice Leveson’s inquiry into the phone-hacking scandal will report this week. His recommendations on the future of press regulation are the subject of intense speculation, with essentially three positions being staked-out:
What’s being proposed
‘Independent regulation backed up by statute’
Advocates, who include Evan Harris and the Hacked Off campaign group, argue that the only way to ensure the press does not abuse its position in the future is for it to be regulated. But, they insist, this should be independent both of government and the press, the two main vested interests in this debate — something akin to Ofcom or the BBC Trust. However, it would be backed up a ‘dab of statute’ compelling newspaper publishers with large revenues to be subject to the regulator’s rulings.
‘Self-regulation backed up by contract law’
Proposed by Telegraph executive Lord Black (no relation to Conrad) this would be a new system of regulation legally underpinned through enforceable commercial contracts of renewable 5-year terms. In essence this is a revamp of the current Press Complaints Commission, voluntarily entered into by publishers but much harder to exit, an attempt to deal with the so-called ‘Desmond problem’ (the Express proprietor who casually withdrew from the PCC).
‘Press freedom with no buts’
Free speech proponents — who include industry groups such as the Free Speech Network but also independent voices such as Index on Censorship — argue against any form of statutory regulation that could interfere, however covertly, with the media’s ability to hold the authorities to account for fear of the consequences. Phone-hacking, they point out, was always illegal. And yes, the press sometimes indulges in irresponsible journalism, they say; but that is better than giving up hard-won freedoms for newspapers to speak truth to power.
As yet, there’s no hint which way the Leveson Report will go, though the least likely option appears to be ‘Press freedom with no buts’. Nick Clegg has publicly stated he will back any proposals recommended by Sir Brian Leveson if they are “proportionate and workable”.
What I think of what’s being proposed
‘Independent regulation backed up by statute’:
I cannot support even a ‘dab of statute’ which impinges on the basic right to free speech — in that sense I’m a First Amendmenter. I know Evan and Hacked Off believe passionately that what they term independent regulation will in no way impinge on press freedom to challenge the Establishment. I’m less convinced than they. Who is chair of the BBC Trust? Lord Patten, a Conservative peer appointed by the government. Who is chief executive of Ofcom? Ed Richards, former Senior Policy Advisor to Tony Blair. Of course Britain would not become Zimbabwe if there were independent regulation of the press. But there are many more subtle ways than that in which pressure can be ‘brought to bear’ to ensure compliance. And I don’t want a compliant press.
‘Self-regulation backed up by contract law’:
Self-regulation is (by its nature) a matter for the newspaper industry itself. Lord Black’s proposals do not settle the ‘Desmond problem’. Even if he signs up now to ward off statutorily-backed independent regulation, there is nothing to stop him declining to sign-up again in five years’ time (or simply paying off whoever chooses to sue him for breach of contract before then). Those who care about the future of journalism should want to find a system that sticks. The fact that the public increasingly mis-trusts the press is no longer a philosophical concern: it is one that will hit newspaper owners where it hurts, their bottom line, if readers turn elsewhere to find news sources they can rely on.
‘Press freedom with no buts’:
Which leaves me supporting ‘Press freedom with no buts’ — which I do both cheerfully, but also with a heavy heart. The reason I’m cheerful is quite simple: liberals should enthusiastically champion freedom of speech. It really shouldn’t be left to the likes of Boris Johnson and Michael Gove to stick up for liberties that our radical predecessors fought so hard to win. John Kampfner is right when he argues:
What is so dispiriting is that we in Britain appear … increasingly [to] regard free speech as a danger. … The terrible acts of a few, hacking the phones of the vulnerable with no possible public interest, have handed the moral ground and political power to those who want journalists to be more “respectful”. … I have worked in many countries – not just under authoritarian regimes – where journalists are seduced by the offer of a seat at the top table, or are persuaded not to ask that extra question. “Go easy, we don’t want trouble” could all too easily become the mantra here.
The reason I’m heavy-hearted is also simple: in supporting ‘free speech with no buts’ I know the press will sometimes overstep the mark, that (forget the celebrities for a minute) ordinary citizens’ lives will sometimes be trampled by a raucous press in pursuit of a story.
I don’t worry so much about the Sienna Millers and Hugh Grants: however personally unpleasant their treatment by the hack-pack they at least can afford forms of redress. I do worry about the McCanns and Christopher Jeffries of this world, glibly subjected to horrendous coverage with no thought for the impact on their lives. What I want to see Sir Brian Leveson proposing are are ways of making it easier for private individuals to stick up for themselves without the need for a state-created regulator – as Nick Cohen has proposed:
The government must tackle the costs lawyers impose. Freedom of speech is a fundamental right, without it religious freedom and democratic rights to assess the powerful fail. Yet the natural born billers of the English law are an obstacle to justice. We need cheap tribunals, as they have on the continent. You should be able to sue without worrying that you need £250,000 in the bank before you go to law. … England should uphold the principle of equality before the law by having cheap and accessible means of challenging and defending contested speech. That would be so much better than a politicised quango that seeks to answer the problems of the last century by regulating a monolithic “press”, which no longer exists.
Pretty much absent from the entire debate about media standards has been the simple question: who funds these papers? There are two answers (as Mark Pack pointed out here): the reading public and advertisers who want to attract the attention of the public. We can argue forever about the chicken-and-egg of whether the press reflects society or shapes it. But the simple fact is that newspapers’ power, their very existence, is entirely dependent on us, the public.
We may find it expedient to outsource our personal responsibility as citizens to someone else to regulate our own tastes for us. But is that really how we can create a liberal society?