Ditch Leveson – let’s get back to first principles

Amid the elites’ detailed discussion of competing forms of regulation, there's a danger of losing sight of the far bigger issue of press freedom.

Mick Hume

Mick Hume
Columnist

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Since Lord Justice Leveson published his report on the future of UK press regulation, the debate has largely descended into a confusion of alternative detailed proposals from different sections of the political and media elite.

Tory prime minister David Cameron is drafting a law to create a new regulator, apparently in order to show that Leveson’s proposal for statutory-backed regulation will not work. On the other side, the Labour opposition – reportedly with the backing of deputy prime minister Nick Clegg’s Liberal Democrats – has published a draft bill designed to show that Leveson’s law will work. Meanwhile, the national newspaper editors have been rushing around trying to set up a new body that might stave off the threat of legislation.

In all of the micro-debate around the entrails of Leveson’s 2,000-page, one million-word report, there is a danger that some bigger issues get lost. It might be worth reminding ourselves of some first principles.

The British press is not free enough already

The rows over the precise form that a new system of regulation should take are effectively, as we have argued all along, a phoney war. Too many people on all sides have accepted the central myth of the entire post-phone hacking debate: that the UK press has been too free to run wild, and needs to be reined in or straitjacketed in some way. Their various proposals only differ on what form the new constraints should take. The truth is, however, that the British press is far from free or open enough, even before a new regulator is appointed to teach it a lesson. Press freedom and openness is already constrained by more than 50 different laws, and by a conformist culture of You Can’t Say That. We need to begin from the position that our society needs greater freedom of expression, not more formal and informal constraints on what can be said or read.

State intervention – by governments, judges or officials – is always the enemy of a free press

Much debate has focused on Leveson’s controversial proposal for statutory underpinning of the new ‘independent’ regulator. Since Cameron said he would not support such a Leveson law as a matter of principle, other political and media figures have come forward to oppose the plan. They are right to do so – supporters of a free press in Britain have fought for more than 500 years to liberate it from any form of state licensing or supervision. However, many take too narrow a view of the problem.

Nobody wants to see governments or politicians interfering in the press. That is why there is such unease this week at reports that a government official threatened the Daily Telegraph, reportedly warning the paper that it would be ill-advised to run a story questioning culture and media secretary Maria Miller’s expense claims at a time when she is considering the Leveson report. But state intervention need not only mean clumsy political interference. It is more likely to mean giving a role in the supervision of the press to officials, a quango such as Ofcom – or judges such as Lord Justice Leveson.

That was why spiked argued from the first that the Leveson Inquiry into media ‘culture and ethics’ was itself a form of state intervention in the affairs of a supposedly free press unseen in living memory. Yet many of those now criticising the proposal for statute-backed regulation accepted, either implicitly or often explicitly, the authority of the Inquiry to sit in judgement on the press. We would be in a far better position today if they had come out against the notion of an unelected, unaccountable Lord Justice conducting a showtrial of the popular press in the first place.

There is nothing ‘left-wing’ about being pro-state regulation

Perhaps the worst distortion in the debate about statute-backed regulation is that those claiming to be on the liberal-left of the political spectrum are often the strongest advocates of Leveson and a new law to help regulate the press. Thus it is the Labour and Lib Dem leaders who have drafted a bill for a new statute-backed regulator. The idea of enshrining the new system in statute has also been supported by the National Union of Journalists (NUJ) and campaign groups. Having first demanded that the Leveson report be implemented in full, Labour has now backtracked from his idea of Ofcom as a ‘back-stop’ press regulator. Instead, it wants the new ‘independent’ regulator to be overseen by the Lord Chief Justice – a top position which, incidentally, Lord Justice Leveson himself may soon occupy.

Historically, it was the left and those seeking radical change in Britain who were the most forceful advocates of freeing the press from any form of state supervision, whether by kings, governments or judges. This reflected their faith in the people and democracy. By contrast, over the past century the British liberal-left elite has become estranged from the public and dependent upon the state. Its hatred of the mass media and popular press is a coded expression of its fear and loathing of the mass of the populace. That is why the Labour Party would rather put the future of press freedom in the hands of the Lord Chief Justice than Joe Public.

Opposing statutory regulation is not enough – we need to fight for press freedom

There has been something of a shadow rebellion against Leveson’s proposal for statute-backed regulation. Figures such as Shami Chakrabarti, director of the lobby group Liberty, have struck radical poses against any law compelling newspapers to sign up to a new regulator. Yet their apparently principled stance is largely an illusion. In practice, they have accepted all of the ‘Leveson principles’ apart from statutory regulation. And, as I argued on spiked last week, those principles effectively amount to a system of licensing and policing of the press by other means.

Any ‘independent’ regulator with the power to rewrite the journalists’ code and decide what is in the ‘public interest’ will be a form of outside supervision of a supposedly free press, whether by judges, quangos or a body stuffed with the Great and Good. Any system that threatens financially to penalise those who refuse to sign up to the new regulator is a form of indirect licensing and taxation of the press, unseen in Britain for centuries.

The entire Leveson principles need to be dumped in the dustbin of history. We need to fight for a press free from direct or indirect controls. As I said last week, Britain would be far better off with the few sparse lines of the US First Amendment – which makes it illegal to pass any law ‘abridging the freedom of speech or of the press’ – than with Leveson’s million-word diatribe of legalese.

There should be no victims’ vetoes on the future of a free press

The main argument – if it can be called that – offered by supporters of Leveson has long been that the new system must satisfy the victims of phone-hacking and press intrusion. Those demanding statutory regulation have often hidden behind celebrity crusaders such as Hugh Grant, and other more sympathetic victims such as the parents of Madeleine McCann or Milly Dowler.

Such people deserve all of the sympathy they get. But their status as victims does not qualify them to exercise any sort of veto over the future shape of a free press. The fashionable notion of a ‘victim-centred’ legal system risks replacing justice with retribution. Such an important principle as press freedom cannot be made subject to anybody’s hurt feelings, however genuine they might be.

The media has been guilty of a lot of things – we have seen that any section of it is capable of getting carried away with their crusades, from the News of the World to the BBC’s Newsnight. But the fact that freedom can sometimes be abused is not an excuse for allowing others to encroach upon it. The danger is that the victims are being used as human shields by those pursuing a wider agenda of purging the press. And if there is one thing that is always worse than a free press, it is the alternative.

No to control by censure as well as censorship

There is no need for scaremongering about Britain becoming some sort of Zimbabwe-on-Sea with state censorship post-Leveson. The threat is more insidious. The elites today lacks the moral authority or will to impose censorious rules restraining publication. Instead, they rely on measures of post-publication censure, imposed in the name of those who have been offended. Thus Leveson wants an arbitration body to have the power to pursue complaints against the press from third parties, and to determine when and where corrections and apologies are published. His regulator would also have the power to investigate miscreant newspapers and fine them up to £1million.

Such a system of retrospective punishment would also amount to a warning about what should be published in future – a type of pre-emptive censorship by the back door. With the new regulator also empowered to offer ‘advice’ to the press pre-publication, about what might or might not be considered in the ‘public interest’, the upshot is likely be a serious chilling effect on the scope of press investigations and opinions. The danger remains not crude censorship, but that we are left with more conformist and sanitised press.

Press freedom is an indivisible right – for all, or none at all

The entire Leveson Inquiry was premised on drawing a divide between the high-minded ‘ethical’ media, and the allegedly low-life ‘popular’ press. Leveson’s cheerleaders now try to disguise this prejudice by asserting that there is a difference between freedom of speech for the individual, which is about expressing an opinion, and freedom of the press, which is about making money. That distinction is a nonsense. Press freedom is simply the organised form of our freedom of expression, and the struggle for them both has always gone hand-in-hand. As I asked those demanding regulation in a debate last week, are they suggesting that the Sun should be controlled because it makes money, but the Guardian should not be because it is going bust?

The hard truth is that press freedom is an indivisible right that we defend for all or for none at all. You need not endorse anything the press does to recognise the importance of that principle. Nobody has to pass an ethical test set by Lord Justice Leveson or anybody else to qualify for freedom of expression. The annoying thing about a free press is that it is free, and does not have to conform to what you, Hugh or me thinks it should be.

Publish and be judged – by the public

The debate around Leveson has so far been an almost entirely elite affair among politicians, legal experts and media grandees. That is hardly surprising. The Inquiry itself was a closed shop for such authorities. And a 2,000-page report by a judge packed with legal speak was not written with any intention of widening the public discussion.

The notion of the ‘public interest’ is bandied about by the elites as a device for controlling what the public should be allowed to read or hear, the assumption being that the masses do not know what is good for them. We should insist that only the public is in a position to judge what is in its interests – or, which is just as valid, what interests it. And that judgement can only be made once everything has been made available in the public sphere. It is in the ‘public interest’ for the press to be free to publish, and be judged – by the public, not the judges.

There is no shortage of problems with the British press, from the influence of media monopolies over the market to the self-serving narcissism of much of the journalism. None of these issues, however, are going to be addressed or improved by the various proposals for stricter regulation, that would tame a troublemaking press that remains vital to a democratic society.

Mick Hume is spiked’s editor-at-large. His new book There is No Such Thing as a Free Press… And We Need One More Than Ever is published by Societas and is now available in print and Kindle editions. (Order this book from Amazon(UK).) Visit his website here.

To enquire about republishing spiked’s content, a right to reply or to request a correction, please contact the managing editor, Viv Regan.

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