Leveson: a licence to police press freedom
The dangers inherent in Lord Justice Leveson’s report do not end with the controversy over statutory underpinning for a new press regulator.
The publication of Lord Justice Leveson’s report into the ‘culture and ethics’ of the British media – and his proposals for the future regulation of the press – has, as predicted, sparked something of a phoney war. Critics of Leveson have rallied to support Tory prime minister David Cameron’s rejection of the proposal for statutory-backed regulation. Meanwhile Labour and the Liberal Democrats have demanded that Leveson’s report be implemented in full, backed by a reportedly 100,000-strong e-petition from the Hacked Off campaign and shrieks of horror from its celebrity voiceover artists.
This debate has become so distorted that somebody like Shami Chakrabarti has been able to pose as a champion of press freedom simply by coming out against a law compelling newspapers to sign up to a regulator. Yet she was a key member of Leveson’s panel, who sat in judgement on the press during the inquiry, looking less like a freedom fighter than a member of the Crown’s censorious Star Chamber.
Prominent figures on all sides of this phoney war, including Cameron and Chakrabarti, have declared that they accept the ‘Leveson principles’ of independent regulation ‘with teeth’ and tough measures to enforce the new rules on the press. Yet these principles amount to an order for effectively licensing, sanitising and restricting a press, and further impinging on the bedrock liberty of freedom of expression.
Here are just some of the Leveson proposals that should be rejected along with statutory underpinning.
The illusion of ‘independent self-regulation’
The Leveson report repeats over and over that the new regulatory board must be ‘independent’ of the press and politicians to achieve a system of ‘independent self-regulation’. You surely do not need a law degree to see that as a contradiction in terms. If a regulator is ‘independent’ of the press, it is an external policeman. That cannot be self-regulation by any normal standard.
In any case, what will the new body really be independent of? Unless they are to be angels summoned from above, everybody sitting on it will have earthly interests and agendas of their own. The likelihood is that Leveson’s new regulatory board would be stocked with the same class of the Great and Good who sat as Leveson’s advisers – knights, media grandees, retired police chiefs and the like, none of them with much time for popular newspapers and dirt-digging journalism. These people would have the power to rewrite the journalists’ code, define what is in the ‘public interest’, investigate newspapers they deem to have broken the rules and fine them up to £1million.
What is more, Lord Justice Leveson proposes that the new ‘independent’ regulator should be ‘recognised’ in law, with a ‘recognition body’ empowered to check that the regulators are doing their job. He says that role should be played by Ofcom – the regulator for the communications industry. Leveson also proposes that Ofcom could act as a ‘backstop regulator’ for the press if the new system falls short. Yet Ofcom is a quango stuffed with government appointees – its current chief executive, Ed Richards, is a former top adviser to the New Labour prime ministers, Tony Blair and Gordon Brown. Broadcasting regulators have pursued mission creep over the years, expanding their remit from administering the technical distribution of bandwidths to policing the content of broadcasts. The last thing our raucous press needs is to be overseen by the quango whose aim appears to be to turn the BBC into the Bland Broadcasting Corporation.
The licensing stick disguised as a carrot
The Leveson report claims to offer incentives to publishers to sign up to the new regulatory body. In particular it offers the press a low-cost arbitration system that could save them big court costs, and says the regulator should introduce a ‘kitemark for use by members to establish a recognised brand of trusted journalism’. These have been described by Leveson’s cheerleaders as carrots, not sticks. If so, it is a carrot shaped like a baseball bat with a six-inch nail through the end of it. This is effectively a new form of official licensing of the press, last seen in Britain more than 300 years ago, albeit presented in the double-talking legalese of today.
Those who decline the invitation ‘voluntarily’ to sign up to the new system would be threatened with having to pay ‘exemplary’ damages and ‘one-way costs’ if they were taken to court. That is, they would be made an example of by the authorities. That looks like an indirect form of taxation on dissident newspapers – exactly 300 years since the Crown first taxed the newly unlicensed press in 1712, to try to stop the masses reading about what their rulers were up to. What is more, publications outside the new regulator would be faced with being overseen by Leveson’s proposed ‘back-stop regulator’ – Ofcom.
As for the notion of a kitemark for a ‘recognised brand of trusted journalism’, this attempt to depict the freedom of the press like the double-glazing market ought immediately to raise the questions: ‘recognised’ by who? ‘Trusted’ by who? Much of the evidence to the Leveson Inquiry dripped with fear and loathing of the popular press, and that prejudice is clear between the lines of the report. It is not hard to imagine what view the new regulators might take of ‘good’ journalism. Their kitemark would be a form of ‘ethical’ licensing, a badge of conformism. After all, what such marks usually tell us is ‘this product is safe and child-friendly’. We might note that none of the rule-breaking convention-busting heroes of the historic struggle for a free press in Britain, such as John Wilkes in the eighteenth century or WT Stead in the nineteenth, would have qualified for any such kitemark, and were all the better for it.
A complainants’ charter
One legitimate criticism of the press in the past has been a reluctance to publish corrections and apologies swiftly and prominently enough when mistakes are made. Leveson’s proposed ‘independent’ arbitration body would use that as an excuse to throw the press open to anybody with an axe to grind or a taste for self-publicity.
The arbitrator would hear complaints, not only from individuals alleging mistreatment, but from ‘representative groups’ and third parties who don’t like something they have seen or read. Expect a weekly list of complaints from lobby groups, crusaders and the Society of Black Lawyers. What is more, the hearings would be heard in the ‘inquisitorial’ style of a French court, where the judge simply hears the evidence, rather than the English adversarial system with its rigorous cross-examination of witnesses. The inquisitorial system was used during the hearings of the Leveson Inquiry itself, where tabloid-bashing witnesses were rarely cross-examined. One consequence was that celebrities were able to make all sorts of unsubstantiated allegations about press harassment – from Hugh Grant’s suggestion that a tabloid might have burgled his flat to the myth that in 2001 the Sun started a ‘countdown clock’ to Charlotte Church’s sixteenth birthday – without being challenged.
If the judge figure on the arbitration body sides with the complainant, the regulator will then have the power not only to order the publication of a correction or apology, but to determine how and where it should be printed in the paper. Are the front pages of our newspapers to be edited by judges rather than journalists in future?
A more secret state?
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. For example, Leveson wants to end the practice of ‘off-the-record briefings’ – a key tool in helping both crime reporters and the police do their jobs. The alternative will not be more information coming out of the state, but far less. He says that police commanders should inform officers of ‘the dangers of consuming alcohol in a setting of casual hospitality’, though he does not specify what the drinking-and-briefing limit might be. He also proposes that police whistle-blowers should no longer contact the media with their stories, but should go to a senior officer or the IPCC in confidence – a form of anonymous ‘self-regulation’ he thinks unfit for the free press. And he wants a bar on news outlets naming people who have been arrested. The intention no doubt is to prevent a repeat of the mistreatment of Christopher Jeffries, the landlord of murdered Joanna Yeates who was monstered by newspapers when he was briefly arrested, later winning big damages and starring at the Leveson Inquiry. But there have been many other cases where the press identifying arrested suspects has been crucial both to informing the public, aiding the investigation, and keeping justice open. The end result of all this institutionalised mistrust could only be to make the state more secretive.
Criminalising investigative journalism
Leveson claims to want to protect investigative journalism ‘in the public interest’. Yet his proposals threaten to put investigative reporters in the dock and make it even harder to get at the hidden truth. He wants to change the 1998 Data Protection Act to give journalists less protection when acquiring information through backdoor methods – and suggests that those who break the tightened rules should be jailed for up to two years. Leveson also suggests that the 1984 Police and Criminal Evidence Act should be amended to give less protection to journalists’ confidential sources of information. Protecting your sources is a fundamental principle of investigative reporting. Yet Leveson wants to remove the ‘journalistic exemption’ for material that has been ‘stolen’ – which would mean most leaked information – and let the police or even the Financial Services Authority go into newspaper offices and seize it, without the sort of special court orders required now. One irony is that throughout the inquiry, Leveson and his supporters sought to praise the Daily Telegraph’s exposure of the MPs’ expenses scandal as the sort of ‘public interest journalism’ of which they approve. Yet under his proposal the paper would presumably have had to hand over the leaked/stolen disks containing that information, and turn in the mole to the cops. (That is leaving aside the fact that the 2010 Bribery Act would now make it illegal for any paper to pay for that explosive material on MPs anyway.)
Regulating democracy, too?
As with the police, so with politicians, Leveson wants the press’s relations to be far more ‘transparent’ and open than in the past. Thus he proposes that political leaders, government ministers and shadow ministers and their ‘agents’ should all be required to publish details of their meetings with the press, and a ‘fair and relatively complete picture’ of their correspondence, phone calls, texts, emails etc. Although Leveson insists that he does not wish to interfere with ‘normal’ lobby journalism, the message that off-the-record briefings are suspect and illegitimate could be disastrous for political reporting. If politicians feel that they can effectively speak only on the record, it will surely mean that they talk even more in scripted, hollow soundbites. The long struggle to report the truth about politics to the people will be set back. What is more, it seems the new unelected press regulator will also be tasked with holding our elected leaders to account. And there was I thinking that was the voters’ responsibility in a democracy.
The fox and chicken coop
One aspect of the proposed Leveson’s law that might look appealing to me is his idea that the new statutory backing for regulation would also give the UK government an explicit duty to uphold and protect the freedom of the press. Yet this looks more akin to giving the fox the legal responsibility for ensuring the upkeep of the chicken coop. Leveson says his ‘guarantee of media freedom’ draws heavily on the laws that are to protect the independence of the judiciary. Yet unlike the judges a free press is not an arm of the state, and should not be subject to any such restrictive ‘protection’ by the authorities.
There is a striking difference between Leveson’s proposed protection and the First Amendment to the US Constitution. The Lord Justice suggests, in his usual wordy style, that it will be lawful to interfere with the media ‘insofar as it is for a legitimate purpose and is necessary in a democratic society’, thus leaving the door open for further state intervention. By contrast the short and sweet First Amendment states that it is illegal for the US Congress to pass any law ‘abridging the freedom of speech or of the press’. In other words, it is never ‘legitimate’ or ‘necessary in a democratic society’. If Lord Justice Leveson’s almost-one-million-word report had instead echoed those few words, we would be far better off now.
These and other underlying dangers in the report give the lie to claims that Lord Justice Leveson and his supporters are committed to a free press. The entire spirit of his report is to inhibit press freedom – imposing external standards, threatening reporters with prison sentences, cutting off sources of information, restricting access to police and politicians and so on. The underlying aim, while largely exonerating parliament and the police force, has been to punish newspapers on the basis of complaints that the press have been nasty from the likes of the anti-tabloid lobby Hacked Off.
Of course the idea of statutory underpinning of press regulation must be vigorously opposed, as an attempt to turn back the clock on the historic struggle to free the press from state supervision. But if we are to defend the freedom of the press, the entire Leveson principles also need to be consigned to the dustbin of history.