A misleading defence of press freedom

In today’s Telegraph, an editorial by Tim Luckhurst argues for a continuation of press self-regulation and asserts that both the Hacked Off campaign and the Media Standards Trust are ‘are determined to blur the distinction between statutory regulation and self-regulation [of the press] by pretending that they are not really different at all’. He suggests that in ‘attempting this sleight of hand they overlook the conclusions of three Royal Commissions on the Press and the policies of every peacetime government in the era of universal suffrage’.

These assertions are misleading and misrepresentative, for two reasons.

Blurring vs clarifying

Rather than blurring the distinction between statutory regulation and self-regulation the Trust has spent a considerable amount of time clarifying the distinction. A piece published back in September 2011 – ‘Reform of press self-regulation – a spectrum of possible models’ – laid out seven different models of regulation and detailed the role of legislation (if any) within each. Since then the MST has published a 101 page submission to the Leveson Inquiry that provides historical context, reviews some of the lead models put forward by others, and proposes one of its own.

It is those who argue for a new version of the status quo who obscure the distinction between statutory regulation and self-regulation. The dichotomy they present, between self-regulation and government regulated newspapers, is a false one that not only fails to acknowledge the consensus against government involvement in the press, but ignores the role that law already plays in regulating the media, and contradicts statements that supporters of self-regulation have themselves made.

Within our existing legal framework the press is already both restricted and privileged. Restricted not just by defamation and privacy (via Article 8 of the HRA) but by RIPA, the Official Secrets Act and many others. Privileged by VAT exemption (within the law), by the Reynolds defence, by public interest defences in the DPA (which should be elsewhere), by privileged access to the legislature, and soon to be privileged by the effective abolition of Conditional Fee Arrangements in media cases.

Railing against the law is also contradictory because the Editor-in-Chief of the Mail Group, the Executive Director of the Telegraph (who submitted a plan on behalf of some parts of the press), and Lord Hunt (the current chair of the PCC) have all themselves proposed using legislation to support the new system.

Paul Dacre, in his submission to the Leveson Inquiry, wrote ‘There can be little doubt that, if membership of a self-regulatory body gave access to swift and cheap resolution of defamation and privacy cases, this would be a major boon for both the industry and the public. It would also be a huge incentive for cost conscious publishers to sign up to the new system. Although it would be dependent on Parliament changing libel legislation, it deserves the fullest support” (from ‘Proposals for the Regulation of the Press’, submitted to the Leveson Inquiry, emphasis added).

Lord Black of Brentwood, in oral evidence to the Inquiry, said that with regard to his proposed arbitral arm, that it ‘would require a change of statute because I think I have no — I’m no expert in defamation law but it seems to me if you were trying to force people into some form of compulsory arbitration, you would have to legislate for that’ (Leveson Oral Evidence 9-7-12).

And Lord Hunt, in his submission, made a different proposal, but again involving legislation. ‘It could prove extremely valuable to the UK system of self-regulation’ he wrote ‘if such a provision [to recognize the regulator] could be inserted as an amendment to the current government [defamation] Bill. I do not believe this in any way crosses a “red line” for those of us who have serious qualms about a statutory regulator: the Press Council in the Republic of Ireland may be recognised in a statute, but it is not created by it’.

Therefore the idea that there is a black and white choice, as the Telegraph editorial suggests, between self-regulation and government controlled regulation, one with and one without legislation, is contradicted even by those making the case for self-regulation.

Not overlooking the historical context

As for the assertion that the Media Standards Trust has overlooked ‘the conclusions of three Royal Commissions on the Press and the policies of every peacetime government in the era of universal suffrage’, this appears to ignore the whole first section of the MST submission to the Leveson Inquiry (‘Historical context’, pp.9-22). [There is also a grid of commissions and reviews in Appendix 1 for those who want an overview]. The MST submission was the only one published by the Inquiry which went in detail through the conclusions of each of the three Royal Commissions, and those of the Privacy Committee (1972), and the Calcutt Review.

Following all three Royal Commissions and each review the press – despite many protestations that it would reform itself – failed to make substantive changes. This is why, every 10-15 years, we have had a repetitive cycle of Commissions and reviews, followed by promises of reform by the press, followed by another Commission or review.

Each Commission and Review after the first concluded that the press had failed to put its own House in order. Each time the press was told it had ‘one last chance’ to sort itself out. Way back in 1952, three years after the first Royal Commission had concluded, when the press had still not taken action, the Labour MP, CJ Simmons, put forward a Private Members Bill for a statutory regulator. This helped trigger the newspapers to set up the first General Council of the Press, and Simmons committed to:

‘give the voluntary Press Council a chance to prove its worth, efficiency and competence to do the job to which it has set its hand. I give warning here and now that if it fails some of us will again have to come forward with a measure similar to this Bill’.

Contrary to the impression given by the Telegraph editorial, from the very first Royal Commission the press has been drinking in the ‘last chance saloon’.

The reason we have the Leveson Inquiry is because one of the most powerful media organisations in the UK was found to be involved in systemic, structural, and cultural practices which were either unlawful, unethical, grossly intrusive, intimidatory or misreprentative. There was, we heard at the Inquiry, institutionalized corruption at Britain’s largest-selling newspaper, affecting all areas of British public life. And, we discovered, the largest commercial news organisation in Britain was abusing its power to influence government policy.  No authority believed it had the remit of the powers to hold this, or other big news corporations, to account – not the PCC, not the ICO, not the police and not the politicians (see, for example, the authorities’ response to Operation Motorman). And how did the newspapers react? Did the press successfully hold itself accountable? It did not. Only one national newspaper, The Guardian, sought actively to challenge the power of News International, the rest were either silent, or happy to let the comfortable, unaccountable, status quo continue.

Press freedom is a very precious thing and is not helped by over-simplified arguments and misleading assertions. Press freedom and accountability, within regulation and the law, is not, as Luckhurst claims, an oxymoron. The key is to figure out how to ensure accountability without jeopardizing press freedom. As Lord Justice Leveson asked when he began his inquiry, “Who guards the guardians?”.

If you would like to read what the Media Standards Trust proposed to the Leveson Inquiry, it is available online here.

For other criticisms of the Telegraph editorial see the vast majority of comments beneath the piece online.