Yet if Section 40 is now implemented it will mean that, if any publication not signed up to Impress is sued for libel, the courts would be obliged to make the publisher pay the costs of both sides in the case – even if they won!
It could mean newspapers being forced to pay many thousands of pounds to cover the costs of liars who unsuccessfully sue them for libel. The potential penalties would exert onerous pressure not to investigate or publish important stories in the first place. Section 40 would threaten to bankrupt not just national newspapers, but also hard-pressed local papers and independent publications such as spiked.
That explains why Section 40 has been the focus for many supporters of the #FreeThePress campaign, launched to respond to the government consultation. However, it is equally important that we highlight the second part of the consultation, and press the government to ditch any notion of a Leveson Inquiry Part Two.
The Hacked Off lobby, Labour MPs and others who want to tame the press are keen to talk about Leveson II, because it revives the issue of the historical phone-hacking scandal at the defunct News of the World, which they still cling to as their one trump card. That is a reason for supporters of press freedom to meet the challenge rather than shy away.
To put the sequel in context, let’s briefly remind ourselves of the story so far. Many now give the impression that the Leveson Inquiry was a necessary or at least understandable response to press wrongdoings. It was nothing of the sort. Leveson was from the start a large part of the problem, trying to make our press even less free.
The Leveson Inquiry was set up by Conservative prime minister David Cameron as a panic response to the phone-hacking scandal in the summer of 2011. That scandal exploded after the Guardian reported that the News of the World had not only listened to the voicemail of murdered Surrey teenager Milly Dowler in 2002, but had deleted some messages and thus given Milly’s family ‘false hope’ that she was still alive. This key second allegation was later shown to be untrue. Nevertheless, it had long-lasting consequences, from the closure of the NotW – Britain’s biggest-selling newspaper – to the creation of the Leveson Inquiry.
Cameron announced that Part One of the inquiry, led by Lord Justice Leveson, would probe the entire ‘culture, practices and ethics of the press’. It was empowered to ‘consider the extent to which the current regulatory regime has failed’, and propose a new way of policing the press.
Part Two of Leveson would then focus on past relations between the press and the police around the phone-hacking scandal, to consider ‘the extent of unlawful conduct’ within News International (now News UK) and other media organisations, and whether the police had investigated hacking or were ‘complicit in misconduct’. However, this part would have to wait because of three ongoing police investigations into the press – Operations Weeting (into allegations of phone-hacking), Tuleta (into hacking of computer data), and Elveden (into allegations of ‘conspiring to commit misconduct in public office’).
So the 2012 Leveson Inquiry was not about phone-hacking at all – those alleged crimes were being pored over by the Metropolitan Police. Instead the inquiry – inspired and scripted by Hacked Off – used that scandal as the pretext to pursue a broader agenda against the dirt-digging press. High-profile victims of hacking, such as the Dowlers and the parents of Madeleine McCann, were effectively used as human shields behind which self-righteous celebs and politicians advanced their crusade to sanitise the vulgar ‘culture, practices and ethics’ of the UK press.
It was, as some of us argued from the start, an inquisition more than an inquiry, a year-long showtrial in which the tabloids were found guilty before proceedings began. All that remained was to decide the punishment.
The Leveson report called for a tough new press regulator to be backed by the power of the law. That eventually led to the Royal Charter, agreed at a late-night meeting between the political parties and Hacked Off, and the threat of Section 40 to press freedom.
And the problems with Leveson didn’t end with state-backed regulation. The good Lord Justice also proposed a raft of new measures with the potential to hobble investigative journalism. These included changing data-protection law to give journalists less protection when acquiring information through backdoor methods – Leveson wanted reporters who broke the new rules jailed for up to two years – and amending the Police and Criminal Evidence Act to give less protection to confidential sources, by removing the ‘journalistic exemption’ for material that was ‘stolen’ – which would cover most leaks.
Crucially, Leveson’s assault on investigative reporting also sought to control relations between the press and the police. He demanded an end to ‘off-the-record’ briefings – a key tool in helping both crime reporters and police officers do their jobs – and proposed that police whistleblowers should pursue their complaints in-house, going to senior officers rather than to the media. And he wanted a bar on news outlets naming anybody arrested. As I wrote on spiked at the time, ‘The Leveson report is big on “transparency” as a way of countering what it sees as the questionable relationships between journalists and the police in the past. Yet its proposals are likely to leave the public even more in the dark about what the police are doing… The end result of all this institutionalised mistrust could only be to make the state more secretive.’ That has since come to pass.
Now we are faced with the possibility of Leveson II, which would take us further down the road to a secret state. This probe into press-police relations was initially postponed more than five years ago, remember, because of those three police investigations into the press. These huge operations – amounting, remarkably, to the biggest criminal investigation in British police history – were intended to counter allegations of the police being too cosy with the press by going to the other extreme, the Met treating journalists more like suspected jihadists to be arrested in floorboard-ripping dawn raids on family homes.
And what were the results of this historic, five-year-long witch-hunt? The industry website the Press Gazette counts 67 British journalists as having been arrested from 2011 to 2015 — more than in any other country in the Western world. Operation Weeting ended with just eight convictions for the allegedly epidemic practice of phone-hacking (all for offences committed a decade ago or more). Operation Tuleta was closed down having secured no convictions at all for computer hacking.
Most damning of all for the police and prosecutors was the debacle of Operation Elveden, which finally collapsed in 2016 having sought to jail a busload of journalists for paying public officials for information. To pursue this campaign the authorities effectively invented a new law of ‘conspiracy to commit misconduct in public office’ to prosecute journalists who were not, of course, public officials at all.
Of the 34 journalists arrested and/or charged under Elveden, only one has ended up in jail – and only because he pleaded guilty to this charge, along with hacking and perverting the course of justice, as part of a deal with prosecutors. The acquittal of Sun journalist Anthony France on appeal in October means that not a single conviction at trial has stood. The key was the wisdom of jurors, who failed to understand why journalists were being prosecuted for doing their jobs – digging out true stories that the authorities want to keep secret. They found almost all of the accused ‘guilty’ only of being journalists.
The acquittals in big hacking trials and the collapse of Elveden left the tabloid-bashers bitterly disappointed. I can still hear the appalled, disgusted tones of BBC court reporters forced to tell the world that lowlife Sun and News of the World journalists had somehow inexplicably been found ‘not guilty’.
So now, like elitist losers everywhere, they want a rerun; but not by trusting the uncontrollable plebs again, of course. Instead they want a nice judge-run inquiry, with the rules written by Max Mosley and his Hacked Off allies, that can come up with the ‘right’ verdict against the press and irreverent journalism.
This is the real motivation behind those who want a Leveson II (even if it won’t be led by that particular judge this time): to find the gutter press guilty as charged without any interference by insolent juries. They are shroud-wavers who want to bring a 15-year-old child murder back into the headlines as a stick with which to shape an unfree future for the press.
Leveson II would not only be bad news for the individuals put back in the dock. It would cast another shadow over investigative journalism. It would mean an even more frozen relationship between the media and the police, with more anonymity and less information. Their relations may well have been unhealthily close in the past, when a top reporter could describe himself as a ‘police groupie’. But the move towards a silent, secret state will be far worse for the future of a free society.
A democratic society with open public debate depends on the freedom of the press to shine a light into the darkest corners of power and deepest state secrets. The last thing we need is another inquiry/inquisition designed to turn off that light and make big public issues the private affairs of experts, officials and top beaks looking down on the rest of us from the judges’ bench.
Let’s make sure that the sequel, Leveson II: Revenge of the Freedom-Snatchers, bombs before it ever gets made. The government consultation is open until Tuesday 10 January. Tell them what you think through the #FreeThePress website here.
Mick Hume is spiked’s editor-at-large. His new book, Revolting! How the Establishment is Undermining Democracy – and what they’re afraid of, published by William Collins, is due out in early 2017.
Picture by: Getty
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