As Leveson reports… Why I’m sticking up for ‘Press freedom with no buts’

Lord Justice Leveson’s inquiry into the phone-hacking scandal will report this week. His recommendations on the future of press regulation are the subject of intense speculation, with essentially three positions being staked-out:

What’s being proposed

‘Independent regulation backed up by statute’
Advocates, who include Evan Harris and the Hacked Off campaign group, argue that the only way to ensure the press does not abuse its position in the future is for it to be regulated. But, they insist, this should be independent both of government and the press, the two main vested interests in this debate — something akin to Ofcom or the BBC Trust. However, it would be backed up a ‘dab of statute’ compelling newspaper publishers with large revenues to be subject to the regulator’s rulings.

‘Self-regulation backed up by contract law’
Proposed by Telegraph executive Lord Black (no relation to Conrad) this would be a new system of regulation legally underpinned through enforceable commercial contracts of renewable 5-year terms. In essence this is a revamp of the current Press Complaints Commission, voluntarily entered into by publishers but much harder to exit, an attempt to deal with the so-called ‘Desmond problem’ (the Express proprietor who casually withdrew from the PCC).

‘Press freedom with no buts’
Free speech proponents — who include industry groups such as the Free Speech Network but also independent voices such as Index on Censorship — argue against any form of statutory regulation that could interfere, however covertly, with the media’s ability to hold the authorities to account for fear of the consequences. Phone-hacking, they point out, was always illegal. And yes, the press sometimes indulges in irresponsible journalism, they say; but that is better than giving up hard-won freedoms for newspapers to speak truth to power.

As yet, there’s no hint which way the Leveson Report will go, though the least likely option appears to be ‘Press freedom with no buts’. Nick Clegg has publicly stated he will back any proposals recommended by Sir Brian Leveson if they are “proportionate and workable”.

What I think of what’s being proposed

‘Independent regulation backed up by statute’:
I cannot support even a ‘dab of statute’ which impinges on the basic right to free speech — in that sense I’m a First Amendmenter. I know Evan and Hacked Off believe passionately that what they term independent regulation will in no way impinge on press freedom to challenge the Establishment. I’m less convinced than they. Who is chair of the BBC Trust? Lord Patten, a Conservative peer appointed by the government. Who is chief executive of Ofcom? Ed Richards, former Senior Policy Advisor to Tony Blair. Of course Britain would not become Zimbabwe if there were independent regulation of the press. But there are many more subtle ways than that in which pressure can be ‘brought to bear’ to ensure compliance. And I don’t want a compliant press.

‘Self-regulation backed up by contract law’:
Self-regulation is (by its nature) a matter for the newspaper industry itself. Lord Black’s proposals do not settle the ‘Desmond problem’. Even if he signs up now to ward off statutorily-backed independent regulation, there is nothing to stop him declining to sign-up again in five years’ time (or simply paying off whoever chooses to sue him for breach of contract before then). Those who care about the future of journalism should want to find a system that sticks. The fact that the public increasingly mis-trusts the press is no longer a philosophical concern: it is one that will hit newspaper owners where it hurts, their bottom line, if readers turn elsewhere to find news sources they can rely on.

‘Press freedom with no buts’:
Which leaves me supporting ‘Press freedom with no buts’ — which I do both cheerfully, but also with a heavy heart. The reason I’m cheerful is quite simple: liberals should enthusiastically champion freedom of speech. It really shouldn’t be left to the likes of Boris Johnson and Michael Gove to stick up for liberties that our radical predecessors fought so hard to win. John Kampfner is right when he argues:

What is so dispiriting is that we in Britain appear … increasingly [to] regard free speech as a danger. … The terrible acts of a few, hacking the phones of the vulnerable with no possible public interest, have handed the moral ground and political power to those who want journalists to be more “respectful”. … I have worked in many countries – not just under authoritarian regimes – where journalists are seduced by the offer of a seat at the top table, or are persuaded not to ask that extra question. “Go easy, we don’t want trouble” could all too easily become the mantra here.

The reason I’m heavy-hearted is also simple: in supporting ‘free speech with no buts’ I know the press will sometimes overstep the mark, that (forget the celebrities for a minute) ordinary citizens’ lives will sometimes be trampled by a raucous press in pursuit of a story.

I don’t worry so much about the Sienna Millers and Hugh Grants: however personally unpleasant their treatment by the hack-pack they at least can afford forms of redress. I do worry about the McCanns and Christopher Jeffries of this world, glibly subjected to horrendous coverage with no thought for the impact on their lives. What I want to see Sir Brian Leveson proposing are are ways of making it easier for private individuals to stick up for themselves without the need for a state-created regulator – as Nick Cohen has proposed:

The government must tackle the costs lawyers impose. Freedom of speech is a fundamental right, without it religious freedom and democratic rights to assess the powerful fail. Yet the natural born billers of the English law are an obstacle to justice. We need cheap tribunals, as they have on the continent. You should be able to sue without worrying that you need £250,000 in the bank before you go to law. … England should uphold the principle of equality before the law by having cheap and accessible means of challenging and defending contested speech. That would be so much better than a politicised quango that seeks to answer the problems of the last century by regulating a monolithic “press”, which no longer exists.

Finally

Pretty much absent from the entire debate about media standards has been the simple question: who funds these papers? There are two answers (as Mark Pack pointed out here): the reading public and advertisers who want to attract the attention of the public. We can argue forever about the chicken-and-egg of whether the press reflects society or shapes it. But the simple fact is that newspapers’ power, their very existence, is entirely dependent on us, the public.

We may find it expedient to outsource our personal responsibility as citizens to someone else to regulate our own tastes for us. But is that really how we can create a liberal society?

* Stephen Tall is Co-Editor of Liberal Democrat Voice, and editor of the 2013 publication, The Coalition and Beyond: Liberal Reforms for the Decade Ahead. He is also a Research Associate for the liberal think-tank CentreForum and writes at his own site, The Collected Stephen Tall.

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38 Comments

  • Simon McGrath 25th Nov '12 - 8:43am

    Completely agree, we are in danger of allowing the ‘great and the good’ to decide what our papers are allowed to print.

  • Daniel Henry 25th Nov '12 - 9:05am

    Why?
    We have government regulation on the food we eat and water we drink, and that seems to work okay – never stopped me from eating or drinking what I want, but has possibly prevented me being poisoned!

    If you look at the PCC page, the journalists themselves know what kind of conduct they should abide by. Journalism isn’t simply a layman giving their opinion, they’re providing a professional service here. Shouldn’t there be enforced consequences when they fail to meet standards, like in other professions? Won’t regulations weed out the cowboys and enable the higher quality journalists to dominate? Isn’t that what regulation does for all industries?

    Have to say I disagree with both you and Simon on this one.

  • Hacking is not the only problem that has to be redressed. The press engages in party politics: remember not long ago the boast the Sun newspaper made that they had influenced the result of an election ? The Sun is not alone in promoting political propaganda and certain papers (better not to name them) use half-truths and sometimes downright falsehoods to promote their views which gullible readers accept as gospel. For the sake of democracy there ought to be a right to reply as in the alternative media of Television where there are party political slots : surely the time is ripe to extend these to the press ?

  • “I cannot support even a ‘dab of statute’ which impinges on the basic right to free speech”

    That basic right of free speech as restricted by various laws on libel and slander which are regarded as too onerous and on which there is just about a political consensus to redefine?

    Anyway Leveson has never been about press freedom, it has been about organised press criminality, the environment in which editors and proprietors appeared to foster it, the shocking bullying of people too weak, too poor or too vulnerable to defend themselves with lawyers and, above all, the corruption of the police, politics and public servants by News International and their ilk.

    You have to argue on those terms Stephen, and you and all the other critics of Leveson fail to present a serious strategy to reduce the above, instead you focus your anger on undisclosed recommendations that have not yet been made public.

    It’s not encouraging.

  • @ Mike C

    Hacking is not an argument to introduce press regulation. It was and is illegal, all that is required is to enforce the law. THose involved should be dealt with according to the existing law.

  • @ Daniel Henry

    “We have government regulation on the food we eat and water we drink, and that seems to work okay – never stopped me from eating or drinking what I want, but has possibly prevented me being poisoned!”

    So what is the scientific basis you are going to use as a basis for press regulation?

  • Andrew Suffield 25th Nov '12 - 11:26am

    So what is the scientific basis you are going to use as a basis for press regulation?

    “Sometimes something is true”

    (Paraphrasing Daniel Okrent)

    Regulation on the basis of what third parties think is “acceptable” or “respectful” is obviously unacceptable. However, I do think that there should be some restriction on the ability of the media to print things which they know are not true (and yes, this is sometimes provable), and that they should not be able to avoid responsibility for criminal actions on behalf of their employees. On this second point, I suggest that appropriate statutory regulation would be to make a media outlet jointly responsible with their employees for actions (no “we didn’t know” defences) and to prohibit them from printing material obtained illegally unless there is substantial public interest (noting the judicial precedent that the public being interested does not constitute a public interest).

    A good secondary move would be to beef up the obligation to print retractions when a story turns out to be false, so that a newspaper has a duty to print them with comparable prominence to the error, whenever they become aware that they made an error.

    That should shut down most of the abuses, because the company can’t benefit from them. There will still be some cases that slip through, because it wasn’t possible to prove that the company acted improperly, and that’s okay.

    I’m less sure about whether this one is a good idea (it’s verging on the draconian), but: we could substantially improve the quality of the media by adding a rule that if the company does not reveal the identity of their source, then they are jointly responsible for the speech under applicable laws. That means newspapers can’t hide behind “people say” qualifiers to avoid libel prosecution. The idea behind this one is that it stops the media from acting as disinterested conduits of rumours, and nails down the principle that they share responsibility as stewards of public knowledge.

  • “That means newspapers can’t hide behind “people say” qualifiers to avoid libel prosecution.”

    They can’t do that under the present law. It’s very well established that you are still guilty of libel even if you are only repeating something said by others.

  • Simon McGrath 25th Nov '12 - 11:44am

    @andrew – ‘people say’ isnt defence unde rthe libel laws.

    ‘Adrian sanders – if the best you can do is ‘ murdoch is against statutory regulation therefore we should be in favour of it’ then I don’t imagine you will be doing much to preserve press freedom.

  • @ Andrew Suffield

    I agree that if something can be proved to be wrong this should be resolved, however this doesnot require a regulator,

    The lible laws could be amended (to correct some existing anomolies) but to also to address the high costs to both sides (a tribunal system etc). Where things are provable wrong it is easy but for the most part that is not what is being sugested, people talk about “reducing the power of the press” tweeking the current rules and making the police do their job are harly that.

  • @ David Grace

    It would have to be carefully done, but may work. That said a privacy right could so easily be done badly.

  • @Psi
    “Hacking is not an argument to introduce press regulation.”
    You have missed Mike C’s point entirely. His arguments are the ones I should have thought members of any political party whose vote share is completely distorted by the present electoral system would seriously consider addressing.

    A right of reply cannot be guaranteed in a free press and nobody is asking for an exhaustive war of words simply to redress injured feelings: that would quickly drive away readers from most of the print titles who can read it online if they choose to access breaking news and social media websites. However, the argument that readers are gullible enough to be taken in by half-truths and falsehoods cannot be so lightly dismissed. Having researched this quite a bit I completely disagree with, for instance, Professor John Curtice who sticks to the line that newspapers only reflect the views of their readers. It’s an enormous subject, but there is very strong evidence that the word “only” in this context is dangerously bandied around as a gospel truth. It is a view that has been used with relish by opponents of a more responsible press ever since I can remember and I’m afraid people like Simon McGrath forget that ‘the great and the good’ are in this case newspaper proprietors like Murdoch and Lord Rothermere , not forgetting the ever-retiring Barclay twins.
    But while we wait for Leveson’s report the thought that the LibDems might begin to find a friendly columnist or two “under instruction”, were Cameron to have the courage of opting for the proportionate and workable option of introducing truly independent oversight, is worth considering.

  • @Adrian Sanders

    ‘the real issue for Liberals is plurality and ending the concentration of press ownership in the hands of so few people’

    Which is a smaller problem than it was five years ago (and even smaller than ten years ago, and even smaller than 20 years ago). The advent of the internet and decline of newspaper readership has meant that press control is less concentrated. I hope there will be a recognition in the Leveson findings that they are addressing a problem which is naturally alleviating without significant intervention. I also remember that News Corp shareholders mounted a significant attempt to replace RM and he owns less than 50% of voting shares.

    http://www.guardian.co.uk/media/2012/oct/03/rupert-murdoch-shareholder-news-corp

    @ Mike C

    ‘certain papers (better not to name them) use half-truths and sometimes downright falsehoods to promote their views which gullible readers accept as gospel.’

    This is the sort of comment which I’ve heard from many Lib Dems that worries me: our issues with the press are bound closely to our opinions of particular papers and the fact that we don’t like them very much. I’m not sure we’d be taking the same stance if major newspapers regularly endorsed the Liberal Democrats.

  • Keith Browning 25th Nov '12 - 1:37pm

    The Newsnight discussion on the subject was quite revealing. The parent of a 7/7 victim described in a feature piece, how he was excluded from any two way consultation ‘process’, ostensibly because he wasn’t ‘famous’ enough. He wanted the ‘normal’ people to have a voice not just those with a ‘rented’ flat in the Westminster bubble.

    His whole testimony was then rubbished by the panel – with a journalist for a National newspaper, claiming she knew better and was quite capable of representing ‘normal’ people. If she genuinely believes that then the rest of us 59 million ‘normal people have little or no chance.

    Put a few ‘normal’ people, with no vested interest or axe to grind, on an Independent Press Complaints panel, and we might get some common sense. Anything else is doomed to be more of the same – feeding troughs and mutual back slapping, alibis and excuses.

  • @Mike Bird
    Opinions and falsehoods are not the same thing , so stop worrying.
    Rupert Murdoch certainly isn’t: http://www.guardian.co.uk/media/2012/oct/16/rupert-murdoch-shareholders-news-corp-agm
    Those “less than 50% of voting shares” are in fact 40%, but crucially this is a ring-fenced block of voting shares so he needed only 11% of institutional and independent shareholders’ votes to retain control….which of course he did with ease.

  • @ Nick – David Allen Green’s article is a good one. (I had read it.)

    However, what neither he nor Hacked Off have been able to say is how the ‘independent’ regulator will actually be appointed in a way that is both wholly independent of government influence and yet also in some way accountable to the public. And don’t forget David AG’s penultimate paragraph:

    Those in favour of a better newspaper industry cannot treat statutory regulation as a panacea. Black ink in a statute book is not enough to improve the culture which tolerated tabloid excesses.

  • Simon McGrath 25th Nov '12 - 2:44pm

    @adrian – as it happens I am a Liberal not a Liberatarian. Liberals have always been in favour of a free press – worryingly you seem not to be.

  • Joseph Donnelly 25th Nov '12 - 3:07pm

    statutory under-pinning of self-regulation? Sorry that seems like a complete oxymoron.

    Dissecting it what you mean to say is that they are self regulating except that regulation is enforced and defined by a body that is not themselves…hence surely they are not self regulating.

    Either they are self regulating or they are not, you can’t have it both ways. We need to be intellectually honest when we make arguments in areas as important as free press and freedom of expression, if you are calling for a government regulator of the press, however independent, admit it.

  • @ Sean Blake

    “You have missed Mike C’s point entirely”

    Well you appear to have missed my point entirely. I was highlighting that to start a sentence with “Hacking is not the only problem that has to be redressed” the use of the words “only problem” or similar suggests that Hacking is a problem that needs to be resolved by regulation. This is the bundling technique is used by people to suggest that there is a problem that is so significant that a major change (with assorted regulatory mechanism) is needed rather than a much more specific problem which can have a targeted solution.

    I fear that there is a belief that because a large majority of the press don’t like the LibDems there must be some way to stop them from being “nasty” to the LibDems. I terrifying prospect.

  • @Psi
    “I fear that there is a belief that because a large majority of the press don’t like the LibDems there must be some way to stop them from being “nasty” to the LibDems. I (sic) terrifying prospect.”

    I got your first point, but it wouldn’t be a terrifying prospect to imagine fairer coverage once in a while, would it? Deprived of reading that Nick Clegg “is an arrogant, intolerant man who hates his country” (DM, where else?) just before this year’s party conference wouldn’t terrify me. I’d just like to see what ‘ Conservative Home’ would have made of an attack like that on any of their cabinet, let alone their leader.

  • @ PSI
    Redress should not be confused with regulation: although some minor regulatory measure may be necessary to introduce redress. Democracy and a free press are intertwined and I would never wish it to be otherwise. The point I was trying to put across was that there are party political broadcasts on the visual (television) media which provide a balance whereby the public can make up their own minds what to believe, so why not introduce the same to the written (press) media

  • Martin Lowe 25th Nov '12 - 7:45pm

    There’s a lot of people muddying the water on what having a free press actually means – both accidentally and deliberately.

    It’s perfectly reasonable to allow a press to investigate and publish a story that is in the public interest.

    It’s not reasonable to let a newspaper print falsehoods about a person, deny them the right of reply and then employ a barrister to threaten to take their home and business from them if the individual tries to take it further (as the Daily Mail did to one unfortunate woman once).

    It’s not restrictive of free speech to expect that a practitioner should justify their actions when challenged, as well as providing redress to the wronged when those actions are justifiable.

    Free speech does not include being able to get away with it. Freedom of speech is for all – and at the moment, we have a system where some people’s speech is freer and louder than others’.

  • Andrew Suffield 25th Nov '12 - 9:24pm

    I agree that if something can be proved to be wrong this should be resolved, however this doesnot require a regulator,

    It requires a change from the current system. And the media have proven entirely unwilling to self-regulate on this.

    My ideal solution would probably look like an independent replacement for the PCC with slightly stronger rules and much stronger ability to enforce them.

  • @ Sean Blake

    I wold be very pleased to see more fair coverage of Nick Clegg, however I would not want to see someone in an ivory tower deciding what is fair coverage. I think there is an attitude that the party has been wronged by the newspapers particularly at the last election, however I believe it was far more self-inflicted damage. In the last there had not been the same level of scrutiny which had caused the party to become sloppy in its messaging (signing a commitment on fees when it didn’t appear in the manifesto until page 38 or something, manifesto was right pledge was wrong).

    I don’t object to some form of newspaper equivalent of party political broadcasting but that is more about election law than press regulation, and it won’t stop the press picking at areas of the party platform where there are loose threads.

    @ Mike C
    I agree there is a big difference between redress and regulation. But you can have effective redress without a regulator. Belter libel laws and a better system for enforcement (keeping costs down for both sides, like a tribunal system)

  • David Wilkinson 26th Nov '12 - 8:27am

    The idea that the national press should be allowed to carry on as normal after all that as taken place is not going to be accepted by most of the general public.
    They have seen the sewer rat tatics of the so called press against inocent victims such as Hillsborough, Milly Dowler, 7/7 victims and many others who did not court the public eye and there is of course the juciy titbits of celebs private lives all to sell more papers.
    Other posters have said the law covers all of these issues, the trouble is that the law was treated as an inconvenience and was to be broken at any opportunity if it got in the way. It as taken years to get to the current charges against certain persons.
    The owners, the editors and many journalists just lost the plot and what even passes as good behaviour or morals ( if those are known if the national press).

    I will wait and see what Leveson says, but if it is new regulations on the press so be it they will have only themselves to blame, no one made them do these dirty tricks.
    If you want to wallow in a midden don’t compain if you get covered in muck.

  • James Sandbach 26th Nov '12 - 11:49am

    There’s nothing intrinsically illiberal about bringing a statutory regulator of the press into being; we recognise for example that financial institutions need a statutory regulator in their own interest and the public interest for the efficiency of the market, the fairness of the their conduct and the protection of consumers. Independent statutory regulation is not the same thing as political interference or censorship to which obvioulsly liberal would be opposed.

  • Donal Farrell 26th Nov '12 - 12:21pm

    Why can’t we all wait till the report is published, and we have had time to read and properly consider its recommendations?

  • Free speech can only be free as long as it doesn’t harm others and is honest.

  • Malcolm Todd 26th Nov '12 - 1:01pm

    Neil:
    “Free speech can only be free as long as it doesn’t harm others and is honest.”

    Honest according to whom?
    Is ‘honest’ the same as ‘factual’? (Is fiction permitted?)
    Is a claim that is contrary to the current consensus of scholarly opinion “dishonest”?

    I don’t think what you’re describing is free speech at all.

  • David Allen 26th Nov '12 - 1:31pm

    Do opponents of statutory regulation object to putting an imprint on their Focus leaflets?

  • Richard Church 27th Nov '12 - 5:25pm

    The question is what the powers of a regulatory body will be. It shouldn’t have any power to prevent any newspaper printing anything, those restraints are already there in the law- libel etc. What it should offer is some right of redress to those maligned, within the law, by the media. Those who argue for the status quo offer no protection to people like Chris Jefferries, whose lives have been turned upside down by malign reporting by the media. They deserve a right of reply and compensation for what has been done to them, and that can be delivered only by a regulatory body with teeth.

  • @ Richard Church

    Libel law covers the situation with Chris Jefferies which is why he was paid damages and apologies were printed. Also two papers were fined (not enough) for contempt of court.

    The law already has a framework for resolving the matter. That is not to say there is not some refinement; a system that had a lower cost route such as a tribunal system would help. Also the use of a greater variety of mechanisms of redress would be useful. However to create a regulator would be a dangerous step.

    That is not to say that this would not be aided by a more effective PCC but these things are using the existing framework, creating a new framework that is susceptible to political manipulation (a regulator) would be a very bad idea.

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