Lord Justice Leveson’s inquiry report has provoked predictable responses of respect, revulsion and indifference from various parts of the media. But perhaps the most interesting response is the political one.
As Leveson LJ said in summing up his assessment of the culture, practices and ethics of the media:
“It’s up to the politicians now.”
Each of the three party leaders expressed some support for the proposals. Where they differ is the extent of support, particularly for the use of statute as a fall-back position, to ensure the proposed new regulatory body retains independence, and covers all media outlets. It is this proposal that has been the most controversial.
Should liberals support Nick Clegg’s stance, accepting the need for statute, or should we be steering him towards David Cameron’s initial position – for a new regulator, but “not convinced” of the need for any statute? Taking a closer look at some of the arguments – some genuine, some fallacious – will help us realise Clegg, largely supported by Ed Miliband in this case, is right.
Free speech vs. free press
Many commentators have painted any statutory intervention as being a block on free speech, but there is a distinction between free speech and a free press. Free speech is the principle, and can fairly be considered as the cornerstone of a democracy. A free press is one of the mechanisms through which we give effect to free speech. Of course we must have a free press – the idea of government constraining what is reported is anathema to democracy.
But we have seen from incidents such as the outing of police blogger Nightjack, and of course the interception of people’s voicemails itself, that the press doesn’t always promote free speech. Sometimes, sections of the press act against the uninhibited expression of ordinary people – be they bloggers or victims of crime.
It isn’t against the principle of free speech to ensure the press curbs this behaviour.
The standard line trotted out against any form of statutory intervention is that even if a tame statute is enacted now, a future government could amend such an act to create a repressive, anti-democratic press environment. This might be called ‘the Rubicon argument’ (apparently the metaphor of choice).
Leave aside the point that such a heinous government is unlikely to be thwarted by the mere lack of something to build upon, there is another flaw to the argument.
The idea our social foundations would crumble if a single item of copy is re-thought, revised or – woe betide - subjected to more editorial scrutiny because of a statute-based system, is simply not true. Free expression is a founding principle of a democratic society, but it is also one of many things we as a society value.
Other such things we value include freedom from bullying, from the abuse of citizens by people in dominant positions and the prevention of crime. Those that say the whole of the hacking scandal is just a failure of criminal law might want to think about the role of an effective code of conduct on preventing such crimes, much as lawyers’ codes of conduct may be necessary to prevent financial irregularity.
A proper code of ethics, supported by effective implementation, can promote these other interests. The test of Leveson’s proposals in a liberal society should not be: ‘Would they impinge to even the smallest extent on the freedom of expression?’ It should be: ‘Would the restriction on the press be necessary and proportionate to preventing harm from press excesses?’ With the high value we rightly place on a free press, this test is a high hurdle.
To this extent, perhaps some of the Lord Justice’s recommendations would be disproportionate. Nick Clegg’s statement to Parliament acknowledged as much, particularly in the area of data protection.
Another area of conflict, brought out by Shami Chakrabarti’s comments, is whether it is right for Ofcom to have oversight of any new independent regulator. But the central proposition is that freedom is already inhibited when newspapers, for example, print material that would prejudice the trial for a murdered girl’s accused killer. Effective prevention of this is a legitimate goal.
Of course, I wouldn’t blame the press for militating against such a move, but we must realise this is a sectional concern – the press have the right to argue against any inhibition on their titles’ actions, just as victims’ groups have a right to campaign and petition for tighter controls.
It is the politicians’ role to weigh up these claims and make a judgement.
Presently, the case for new, independent regulation that is safeguarded by a statutory backstop is clearly made.