Keep the press free

Calls for stricter rules will be a disaster for freedom of speech
October 19, 2011
"Hackgate" exposed the fraudulence of press self-regulation. But what should replace it?

The Leveson inquiry into the ethics of the British press, set up in response to the tabloid phone hacking scandal, finally gets under way in November. Where should it lead? The politicians who called for it have no idea. Ivan Lewis, shadow culture secretary at the time, wanted editors and journalists subjected to “professional” regulation—heavy fines, or the equivalent of disbarment—just like reckless doctors and irresponsible barristers. Ed Miliband, by contrast, says he still wants the tabloids to regulate themselves, thereby clinging to a notion wholly undermined by half a century of failures by the Press Council and Press Complaints Commission (PCC).

To the siren call for “professional” regulation, there is a fundamental objection: journalism is not a profession. It is the exercise, by occupation, of the right to free expression available to every citizen. As that right is available to all, it cannot, in principle, be withdrawn from a few by any system of licensing or professional registration. We have not had press licensing in this country since the Stationers’ Company lost its monopoly over the press in 1695 and the demise of that sinister Restoration official: “the Surveyor of the Press.” Ivan Lewis should brush up on British constitutional history, which revolts at the prospect of a government-appointed regulator silencing a newspaper by administrative diktat, or by withdrawing a journalist’s right to write.

But Ed Miliband’s preference for self-regulation is equally unacceptable. In the case of the tabloids, this simply means self-serving regulation. The Press Council, and subsequently the PCC, have been funded by media owners in order to pretend that their newspapers abide by an enforced code of conduct, and hence there is no need for a law to protect privacy. Britain’s judges have seen through this pretence, and have created just such a law, using the plasticine words of Article 8 of the European Convention: “the right to respect for private and family life.” Meanwhile, circulation-focused tabloid editors have breached the code of conduct with abandon (my favourite example was the Sun, in reaction to severe censure for publishing paparazzi pictures of bikini-clad Diana: it printed them again the next day, under the heading “This is what the row’s all about, folks!”)

Editors have taken scant notice of PCC rulings because, to date, the body has no available sanction. It can offer no compensation to those whose privacy is violated; and for those who are reviled or falsely accused, it cannot force editors to publish a reply or to report an adverse adjudication with due—or any—prominence. Its remit does not even cover all newspapers: the Express Group has withdrawn, and Ian Hislop says that Private Eye could not possibly accept the low ethical standards of the seven editors who sit (with ten lay persons) on the PCC. It has no powers of investigation, although it pretends to hold inquiries which usually contrive to exonerate the press. In 2009, it naively announced its satisfaction that there had only been one phone hacker at the News of the World, and actually criticised the Guardian for suggesting otherwise.

After this record of failure, the PCC should certainly be abolished. But what should come in its place? Many want Leveson to recommend a statutory press council, a body invested with legal powers, to replace it. This would not pose a problem for press freedom if such powers were exercised by a press ombudsman—particularly if he or she were a respected journalist—and limited to ensuring rights of reply, corrections carried with due prominence and modest compensation for victims of unethical conduct. However, the danger is that we would end up with a press council dominated by professional worthies, with no background in or empathy with the media, using new legal powers to deter important forms of investigative journalism.

This danger was emphasised by the recent PCC decision upholding a complaint made by the Lib Dems against the Daily Telegraph. The newspaper used undercover reporters to record Vince Cable boasting he had “declared war” on Rupert Murdoch, whose bid for BSkyB he was meant to be impartially assessing. The exposé proved that no politician—whether Vince Cable or Jeremy Hunt—should be trusted to make quasi-judicial decisions in matters in which they have a political interest. This is hugely important. If a statutory press council, composed wholly or mainly of self-important lay-persons, were able to apply legal powers to fine journalists and editors or punish their newspapers for running such investigations, and could provide the likes of foolish Vince Cable with tax-free compensation, this would be a disaster for press freedom.

There is no perfect solution, although there is one which has the merit of simplicity. Why not sweep away the fraudulent panoply of self-regulation, yet also avoid the dangers of statutory regulation, simply by leaving it all to the law? The News of the World scandal, after all, was that editors and journalists arrogantly disobeyed criminal laws against hacking and bribery. Leveson could simply recommend that the existing PCC code of conduct be given statutory force, so that any victim could sue for damages—leaving the press to be hoist, if necessary, by its own petard.