We must have statutory regulation – and liberation – of the press

by Carl Gardner on November 28, 2012

If you’re interested in legally minded reports about how the press should be regulated, then there’s something you should read before tomorrow. Sir David Calcutt QC’s 1993 Review of Press Self-Regulation is worth another look, nearly twenty years on.

In 1990, Sir David chaired a committee on privacy and related matters, which recommended a toughening of the press’s self-regulatory regime, and the creation of a “Press Complaints Commission”. It also said that, if the press failed to demonstrate that non-statutory self-regulation could be made to work effectively, a statutory tribunal should be established. The press, in other words, should be given one last chance to regulate itself properly – a recommendation that led the then Heritage Secretary David Mellor to say, famously, that the press was

drinking in the last chance saloon.

Two years later,  he asked Sir David to review the effectiveness of the new method of self-regulation. He wasn’t in office to receive Sir David’s recommendations: as Sir David recounts in his review (para. 4.65), in July 1992

The People published details of a liaison between actress Ms Antonia de Sancha and Mr David Mellor MP. The affair came to light after a telephone conversation between the two had been recorded.

The press having tried to regulate its Mellor problem itself, Sir David reported to Mellor’s successor, Peter Brooke, that (summary, para. 5)

The Press Complaints Commission is not, in my view, an effective regulator of the press … It is not the truly independent body which it should be. As constituted, it is, in essence, a body set up by the industry, financed by the industry, dominated by the industry, and operating to a code of practice devised by the industry and which is over-favourable to the industry.

and that, in the two years since the first report (summary paras. 8-9),

Nothing that I have learned about the press has led me to conclude that the press would now be willing to make, or that it would in fact make, the changes which would be needed.

Accordingly, I recommend … that the Government should now introduce a statutory regime.

The Calcutt moment, though, was missed. The PCC exists still, and tomorrow, nearly twenty years later, Lord Justice Leveson will report on whether statutory press regulation is now finally required.

Of course statutory regulation is needed. Opponents of the idea call themselves the “Free Speech Network”, and say the press, which exists to hold the state to account, must not be subject to state control. But the argument is obviously and hopelessly flawed. Journalism is not only about holding the state to account: it is a much broader and deeper endeavour addressing not only government but sport, fashion, food, film, relationships, health, science, work, religion and even law. Part of the press at least thinks it exists to report on individuals – where they go and what they wear. Holding government to account is only a small part of what journalism does. Crucially, the press exists among all these other things to hold private power to account. The state is not the only power in the land, nor power’s only abuser. A serious abuser of power over individuals, largely unchallenged by the press for obvious reasons, has been the press itself.

Statutory regulation is not the same thing as “state control” – a point well made by David Allen Green. One of the many problems with the current system of self-regulation is that, if a media group refuses to recognise it, like Richard Desmond’s Express, there’s nothing in the world anyone can do. That’s all you need to know in order to laugh continued self-regulation out of court. Only legislation can require newspapers to submit even to their own enforcement of their own code. As David Allen Green put it:

Unless a regulator has a statutory basis for its powers, the effectiveness of the regulator is entirely at the behest of the regulated.

The case for statute is, on that ground alone, irresistible.

What statute – and no other arrangement – can do is set up a genuinely independent regulator: independent not only of the state but of the press. I won’t go into the detail of what model I’d like to see. The detail matters less than the principle. But in brief, we need a regulator whose decisions are read, respected and feared by journalists, editors and proprietors. Yes, I do mean feared. That’s why I wrote it in italics. If you suspect that makes me an enemy of free speech, remember that I also said respected. Journalists, editors and proprietors are not fearless today. They fear not the judgment of anyone they respect, but letters from solicitors instructed by the rich.

To conclude, I agree with the public: I want an independent press regulator established by law. Now’s the chance to achieve it. There is a suspicion that the Prime Minister may duck it, preferring press favour. If he does, it’ll be his worst mistake. Charles Moore is right to compare newspapers today to the trades unions of days gone by. Cameron may choose to play Harold Wilson, and cast Lord Justice Leveson as Barbara Castle. But Castle was right, Labour gained no advantage from Wilson’s abject submission, and the unions, once they’d gratefully destroyed Labour government, had to be tackled not long afterwards by Margaret Thatcher. If Cameron chooses to be the prisoner of the press, as Wilson and Jim Callaghan chose to be prisoners of the unions, he’ll deserve his political fate.

I don’t believe in sweetening this pill, or buying the press off with concessions. It’s high time for proper regulation, and that’s that. Nonetheless, there is a second bird visible on the horizon – and Lord Justice Leveson should stone it. The bird is libel reform (and maybe privacy too).

Libel in England is a scandal, and Parliamentary proposals to reform it have so far been pretty pathetic. Instead of tinkering with the existing law on the assumption that judges and courts are the right enforcers of it, we ought to take a radically different approach. Libel and privacy should be dealt with by the new independent regulator, or a statutory tribunal separate from and independent even of it. It should be much quicker and cost much less than the courts, it would be fairer and more accessible to the non-rich, could show more understanding of the importance of risk-taking journalism and have power to award more flexible remedies.

This body could sit alongside the courts, acceptance of its rulings being a defence to a libel or privacy action. But that’d still mean newspapers and their victims faced chillingly expensive attempts by the rich to “appeal” regulatory rulings. No. The way to end the libel scandal, and the best way to improve the way we deal with privacy cases, is to put these matters in the hands of the expert regulator or tribunal instead of the courts. It should be the exclusive first-instance regulator of press intrusion on reputation and privacy. The only appeal to the courts should be on the basis that the tribunal has acted unlawfully.

For this to work, the tribunal would need power not only to order apologies but, in privacy cases, to act before publication and order prior restraint in rare, appropriate cases. That’s the same power the courts have now. It sounds draconian at first, I know; but otherwise the courts, which do of course have power to grant injunctions, will remain the rich litigant’s first choice.

The advantages of my proposal for the press are, first, the cost saving that would result from having these cases mostly decided outside the courts; second, the demotion of financial compensation and legal costs to the status of rare, unimportant remedies, taking away the most “chilling” factor of all on free speech; and finally the vesting of power in an expert body, probably containing a substantial minority of journalists, rather than in judges.

Those, then, are my last-minute suggestions for Lord Justice Leveson. Statutory regulation is a no-brainer; we obviously need it. But the regulator should earn its keep by annexing libel and privacy, keeping those disputes out of the courts and subjecting them to quick, expert resolution with money a peripheral concern. If that system worked, in due course the regulator could even take on statutory responsibility for contempt of court – ending the current “state regulation” by the Attorney General.

And there should be a defence to any criminal charge – even phone-hacking, theft, fraud and burglary – if the defendant can bring evidence that what he or she did was reasonable journalism in the public interest.

Finally, as a reader of this blog (thank you) you’re entitled to know whether I think blogs should be regulated in the same way as the press. My view is this. It’s the culture and ethics of the print press that have caused all this trouble; so it’s the print press and its online manifestations that should be subject to compulsory regulation. Others, like independent bloggers, should be able to join voluntarily and for free, at least if they’re non-commercial. I’d positively want to sign up to a system along the lines I’ve set out (or if it just offered some defence to legal action, or even if it was simply free for non-profits). I’d want to learn from the standards applied by the regulator, and to be shielded from the threat of litigation. If other independent bloggers wanted to remain outside and face the old-fashioned chill winds of libel and privacy law, it should be up to them.

A new system could, finally, properly regulate the press. It could also liberate it from its current legal shackles and make it freer, less self-censoring and less servile than ever. But neither can happen without legislation.

{ 9 comments… read them below or add one }

1 Kelvyn Gardner November 29, 2012 at 10:51

The press may fear the cost of libel settlements brought about by rich litigants. What they seem to fear more, though, is being obliged to print apologies and retractions which have prominence equal to that of the original offending article(s). A new libel regulator should certainly have the power to enforce this. Being obliged to grovel a bit might take the sanctimonious down a peg or two.

2 ObiterJ November 29, 2012 at 10:52

Good piece! I am very concerned at the idea of statutory regulation of the press. It seems to me that there is a very thin line between statutory regulation and state control. If the media “fears” the regulator then surely you have control – do you not? Also, just how independent from government would this regulator be? Goes back to the Tony Benn questions – who appoints the regulator, how do WE get rid of him etc. (Answers: a Minister and we don’t have a say).

I also think that had existing criminal law been properly enforced then things like hacking of Milly Dowler’s phone would not have arisen. Much of the problem lies in failure to enforce existing law. (Similarly, it took the Attorney-General too long to wake up to what was being said in the media about Mr Chris Jefferies in relation to the Yeates murder).

Tend to agree with you on defamation reform. A much simpler and cheaper process is needed but it’s easier said than done. Any form of tribunal tends to be take over by lawyers and I’m afraid that costs then rise. Also, you acknowledge that appeals on “unlawfulness” would lie to the courts. It’s precisely here where the rich and famous have you by the short and curlies since they can afford the litigation. There will certainly NOT be legal aid for any of this.

I really do not see that independent blogging was in Leveson’s remit even on a broad view of the remit. However, there was some blogging evidence given to his inquiry so we can expect something to be forthcoming. We’ll wait and see what it is.

3 Carl Gardner November 29, 2012 at 10:59

Kelvyn,

I agree!

4 Carl Gardner November 29, 2012 at 11:09

Obiter,

If the media “fears” the regulator then surely you have control – do you not?

Yes, I agree. And I don’t think anyone’s arguing that the press should not be controlled. Even the press themselves say it should be controlled – by them. The whole problem has been that the press has been nominally accountable to a body which inspires no fear. That’s why it’s such an important word in this context.

The odd thing is that some people arguing against “state control” go on (this was an excellent point made by the Conservative MP George Eustace said on Today this morning) to argue that what we need is for the police to be more active in pursuing journalists. And you yourself mention the Attorney General – a government minister! It seems to me that they’re “state control” – much more than an independent statutory regulator would be.

5 Matt Flaherty November 29, 2012 at 12:02

@ObiterJ – You make some common objections, and these are easily dismissed. How independent can a regulator be? Look at OfCom. It does a good job. In fact the government were just about to try to eviscerate OfCom had not the hacking scandal become so inflamed and attention focused on Jeremy Hunt’s unhealthy relationship with News Corp. We must resist any such attempt to gut an effective regulator.

On the enforcement of existing laws, ala Ian Hislop’s question to the inquiry, one must ask why these laws were not enforced. This is obvious. There is a corrupt triangle among the press, the police, and the government. The press have bought stories from corrupt police officers and used private investigators who have inroads into the police and other public services. People look the other way. This is the culture that needs to change. Operations Elveden and Weeting only came about as a result of serious public outrage over a particularly grievous act. True independence can only be achieved through regulation. It is silly to deny this.

6 Kelvyn Gardner November 29, 2012 at 12:14

Ofcom is a good example but for some reason the ‘free speech’ fascists don’t seem to have heard of it.

7 Nick Dawes December 1, 2012 at 19:31

I thought the most startling proposal in Lord Leveson’s presentation, included almost as a passing comment, was to allow exemplary damages against any defendant who refused to be bound by the mediation procedure. This would open a can of worms, as exemplary damages, though common in the US, are almost unheard of in English law. I am surprised no one else has picked this up, as to me this is far more important than the question of whether the new arrangements do or do not require legislation.

8 ObiterJ December 1, 2012 at 21:55

@ nick Dawes – this post was slightly ahead of the launch of the Leveson Report. This explains the lack of any comment on Leveson’s actual proposals. The report is lengthy but, looking beyond the headline recommendations, there are others matters in the report which (as Cameron said) require much more thought – e.g. recs. to amend data protection law and the PACE 1984.

If Leveson’s recommendations are implemented in full, those who choose to operate outside the regulator will be running a very considerable risk. It is voluntary BUT with huge risks if you don’t sign up.

9 Andy J December 2, 2012 at 11:35

All the talk about statutory or self-regualtion rather misses the point about reforming the ethics of the press. Obiter J mentions ‘fear’ of the regulator, but surely that is principal way in which deterrence works with the criminal law. If a perpetrator has no reason to beleive the law will be enforced then you have the circumstances in which most of the abuses which came out in the Inquiry occurred. The NightJack story is a classic example of this in action, where the contempt for the law was taken into the Courts as well.
There are two problems with just expecting the police to root out misbehaviour of the press: where the activity engages the criminal law, like phone hacking, they first need to be made aware it is going on; and secondly if the activity is low level criminality (eg harrassment or cotempt of court) or a civil matter such as defamation the police are not going to act in a pre-emptive way or at all. Thus there will be no joined up monitoring of overall press behaviour, assuming a compliant (ie useless) son of the PCC is the nominal ‘regulator’.
Only if the ethos within the newspapers is such that these things are seen as wrong (as I’m sure some journalists did think at the time) will a whistleblower have confidence that his complaint would be investigated internally as well as externally. Clearly no whistleblower would have thought it worth raising the hacking issue within the NGN empire, and I doubt it would have been different in most of the other groups, given the arrogant stance the papers have taken generally.
By having an independent regulator with the will and authority to investigate bad practices on a pro-active basis, there is ssome hope that a healthy respect rather than fear might be inculcated. Clearly this will only be possible if the regulator has the power to investigate all the titles, which brings us back to what has underpin the regulator for that to happen.
The problem with everyone chanting the mantra ‘we must have a free press’ is that it serves to perpetuate the myth the journalists are special and above the law, when as others pointed out, they patently aren’t. Perhaps locking up a few more of them might be a salutory lesson.

Leave a Comment

{ 4 trackbacks }

Subscribe without commenting

Previous post:

Next post: