Five myths hampering the debate about press regulation

It was always likely that the Leveson inquiry was going to turn into an ugly political tug-of-war, but not many people can have been prepared for quite how ugly, or dishevelled, the political response would be. At the time of writing David Cameron has walked out of cross-party talks in England, Labour are trying to gain leverage from Leverson by publishing their own paper, while in Scotland Lord McCluskey’s committee has produced a baffling document that aspires to regulate every Twitter hashtag and Facebook cat photo. Perhaps most dismaying has been the way the political chatter has been dominated by a handful of buzz-phrases which a cynic might think were designed to skew and obfuscate the debate.

1. ‘Statutory legislation means state control’

David Cameron has insisted he will not “cross the Rubicon” by introducing legislation to regulate the press. Newspaper proprietors say it would open the door for a less benign government to come along and twist the new law to suit its own nefarious purposes. It’s the classic slippery-slope argument: statutory legislation might seem reasonable in the sun-kissed meadows of David Cameron and Nick Clegg’s Britain, but just think what might happen if some truly rotten scumbag got his hands on power.

There are a few problems with this dystopian scenario, not least the question of where such a despotic regime would spring from. Dictatorships usually emerge to fill a power vacuum in countries blighted by mass illiteracy and/or economic collapse. Despite the industrious efforts of Michael Gove and George Osborne, I’m not convinced we’ve quite reached that stage.

Underpinning this is the puzzling assumption that a neo-fascist administration wouldn’t think to create its own censorship law from scratch. If anything, it would be a more straightforward exercise than trying to tinker with an existing piece of legislation. To change an Act of Parliament the government would need to explain why the current system wasn’t working, get its legislation past the House of Lords and ensure it withstood the scrutiny of judicial review. As long as ministers don’t do anything reckless like repeal the Human Rights Act, the latter process would severely curtail the ambitions of any government to limit the freedom of the press. A royal charter – David Cameron’s favoured solution – carries no such safeguards. It is a medieval instrument that entrusts responsibility for its provisions to the Privy Council, a body currently headed by Nick Clegg, which is not formally answerable to Parliament. If I were a budding dictator, I know which mechanism I’d favour.

2. ‘Freedom of the Press is sacrosanct’

Freedom of the press has become a term so abused that it deserves its own inquiry. As David Allen Green has pointed out, it predates the rise of the industrial printed press and Fleet Street and originally referred to anyone with a Gutenberg press and a political conviction. These days it could be applied to anyone with a blog or Twitter account. To confine ‘freedom of the Press’ exclusively to mass-circulation newspapers, and claim it places them above any form of accountability, is disingenuous. If you argue for a small coterie of well-connected institutions to behave with impunity you’re not defending freedom of any kind: you’re defending privilege.

British journalists think of freedom of the press as a creature of pure reason that soars above the law like Pegasus and can only be harmed by attempts to harness it. The more prosaic truth is that the law is a guarantor of freedom as well as a constraint on it. The United States has a more robust tradition of freedom of the press not because Americans are louder and angrier in defending it (though there is that), but because it’s enshrined in law. And not just any law, but the written Constitution of the land. In Britain, on the other hand, editors are still at risk of going to prison if they insist on protecting their confidential sources. A properly drafted press law should fulfil both functions: establish the freedom of the press, and make provision for redress when it goes wrong.

From the outset the Press has picked the wrong strategy for this battle. It has chosen superstition over reason and muttered about sinister ‘state control’ instead of contributing towards a strong and fair system that enshrines genuine freedom while providing redress where it is abused. The result will be an inadequate and lopsided regulatory framework that the Press has done nothing to prevent, and which will be hamstrung from the start by passive-aggressive resistance on the part of publishers (already established in those descriptions of Cameron’s proposal as the ‘lesser of two evils’). And within 20 years we will be back here again, shaking our heads in feigned surprise at how it all collapsed.

3. A regulator with teeth

Self-regulation has failed. We need to accept this before any progress can be made. When I say failed, I don’t mean in the sense of a schoolboy getting 45% in his maths exam. I mean failed like the liver of an alcoholic on life support. We’ve tried any number of quick fixes and none of them has worked. Giving self-regulation another try makes about as much sense as asking someone to fit a new engine in your car after they’ve stolen it, defecated on the back seat, set fire to it and pushed it off a cliff.

Ian Hislop, who supported the Leveson inquiry but was sceptical of its conclusions, makes a persuasive case that many of the transgressions identified at Leveson could have been avoided if the current laws were properly enforced. Phone hacking is theft, pure and simple, which an effective police force ought to be able to investigate. The McCanns were victims of flagrant defamation and had already received half a million pounds in damages before Leveson started. Christopher Jeffries was subjected to the kind of gossip frenzy that should have landed editors in the dock for contempt of court, had he not escaped prosecution on the technicality that he was wholly innocent of the crime of murder. At the time, however, the attorney general Dominic Grieve meekly issued a statement reminding editors of their responsibilities under the law. This, really, is the nub of the problem. Journalism students who fail to grasp the notion of contempt of court fail their exams: managing editors who wilfully flout it get their wrists slapped. A regulator can have as many teeth as Jaws, but they’re not much use if he chooses to wear a muzzle.

Leveson, above all, was about the breakdown of trust in the media. Journalists have always had to dabble in the black arts and go off-piste to dig up things people would prefer to keep hidden, but the inquiry laid bare the extent to which this process had become detached from any ethical concerns in the pursuit of commercial goals. Any regulator, or arbitration, needs to restore that trust by resolving disputes fairly and transparently, to the satisfaction of all sides. Safe hands do better repair work than sharp teeth.

4. Million pound fines

David Cameron has made much of the shiny new headlights on his proposed non-statutory regulator. But just as nobody ever gets to drive their Porsche at 206mph down Basildon High Street, so the real test of any regulatory system is how well it negotiates the routine business. Million-pound cases come along extremely rarely – perhaps once a decade – and case involving that level of damages should be considered by the courts, not an in-house regulator semi-detached from the judicial process. Though the focus in the media coverage Leveson was on the celebrities, what the inquiry really highlighted was the absence of small-scale redress for people who had suffered in a small, but personally significant way, either through deliberate malice or plain carelessness.

The case that stuck in my mind, probably for domestic reasons, was that of the Watsons from Glasgow, who were angered by a couple of ill-considered columns by Jack McLean in the Glasgow Herald about their daughter, who had been murdered. The editor, the estimable Arnold Kemp, acknowledged the articles were wrong but refused to print an apology. The Watsons started out looking for a simple acknowledgement of the error that had aggrieved them, but by the time they turned up at Leveson they were battle-hardened by 20 years of vigorous – and often fruitless – campaigning, and demanding such drastic measures as a law against defaming the dead. It all struck me as incredibly unnecessary. Had the Watsons been able to secure a suitable apology in the newspaper, and perhaps a small amount of compensation, they could have got on with their lives and we might never have heard from them again. Certainly the dispute would not have escalated to the point where we were being asked to consider extending England and Scotland’s notorious libel laws still further.

Press regulation doesn’t need macho seven-figure fines to prove its worth: it needs an effective small claims procedure to sift through the pile of lesser grievances, all of which matter to someone, and offer accessible, swift, fair redress. Far from million-pound fines, I’d suggest the maximum penalty available to a regulator should be somewhere in the single thousands. Larger sums, and appeals, should remain the preserve of the courts.

5. Opting in, opting out

Finally, much has been made of the question of what happens to publications that opt out of the system. Again, it highlights both the weakness of the Royal Charter solution and the shallowness of Cameron’s thinking. Imposing bigger fines on publications that choose to stay out is likely to be as effective as threatening a recalcitrant schoolboy with double detention. A system grounded in law would offer no opportunity for such posturing: the fines would simply be enforceable as debts. Fraser Nelson’s shrill insistence that he would sooner go to jail than pay the fines would become an irrelevance: rather than land him in jail as a martyr to free speech, the debts would quietly mount up until the day the bailiffs turned up at The Spectator’s offices and started taking away the furniture.

The incentive to take part should be the same as for any other court procedure: if you turn up and contest the complaint, or at least offer something in mitigation, you’re almost certain to avoid the maximum penalty. There might also be some form of bargaining available in terms of reduced fines for newspapers that can agree to print a suitably prominent apology. Opting out of regulation shouldn’t be an option if we are serious about promoting good journalism.

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