Will tighter regulation give a green light to enemies of free speech?

This is the text of a talk I gave as a contribution to a panel debate at the Commonwealth Club on Tuesday 23rd October, organised by the Commonwealth Journalists Association. The other members of the panel were Lord Black of Brentwood, Angela Phillips, Ian Beales and Sunanda Datta-Ray. It was chaired by William Horsley.

Am I anxious about the impact of tighter regulation? Yes, I am. I’m particularly anxious about one proposed new system. A system that has a good chance of being enacted. I’m anxious because, if enacted it is likely to lead to even greater power in the hands of a small group of individuals, could lead to the effective licensing of journalists, and could close down access to news rather than open it up.

The proposed system that I’m talking about is not statutory. No, this system has been put forward by parts of the news industry itself, most notably by Lord Black and Lord Hunt. And the proposals are – I think – regressive, could damage the future of journalism in this country and could seriously constrain free speech.

Why? Because they include, amongst other things:

  • proposals to ‘accredit’ journalists and give press cards only to those within the system. This would effectively create a closed shop that is anathema to free speech
  • proposals to restrict access to Press Association news feeds, which smacks of cartel-like practices and may even be illegal
  • proposals to perpetuate the power of the small group of national news organisations that have dominated self-regulation for the last few decades, notably News International, Associated, and the Telegraph Group

To adopt such proposals would be unhealthy, undemocratic, and go entirely against the grain of open journalism in a digital world.

At the same time I entirely recognize – and have done since long before the revelations of July 2011 – that we desperately need substantial change.

The old system was dominated by a small cabal of big media companies, some of whom came to believe they were immune from any public accountability. As a consequence, some felt able to:

  • Hack phones, hack emails, stalk people, make payments to public officials across all areas of public life, and monster innocent people – with virtually no fear of redress
  • And this was not just politicians or celebrities. On the contrary, it included families who had just suffered personal tragedies, victims of terrorist attacks, the children and relations of well known people, and blameless bystanders who happened to be in the wrong place at the wrong time

This meant there developed, in certain news organisations, a culture of unethical, indecent, and lawless practices.

Think for a second about the message that this sent to other countries. I know people who, on trips to Russia and China, felt humiliated at what this said about modern Britain. Rather than being a model to which other countries could aspire the UK suddenly looked like some corrupt banana republic, run by craven politicians in thrall to media barons.

So we desperately need a new system, a genuinely new system. A system which ensures that these massive media corporations do not wield such unaccountable power, that they are not free to corrupt public life, and that ordinary decent people have some way to gain fair redress when they have been falsely tried and found guilty by the media, or had their lives turned inside out unjustifiably.

But the system needs to be fair and proportionate, and it cannot jeopardize the press’ freedom to report in the public interest. There should not be even a sliver of an opportunity for the government to compromise the press’ freedom.

Therefore, as we should not enact the Black/Hunt plan, so we should not consider statutory regulation.

The purpose of the new system should not be control. The purpose should be to prevent abuses of power. A fair system should give the ordinary person, who does not have the means to challenge the legal, financial and media might of News Corporation – an opportunity to be challenge it. At the same time it should protect news organisations themselves from the blunt arm of the law – protect them from weekly raids by police, from the chill winds of defamation or privacy action.

The only way to create such a system – which is fair to all, which binds big news organisations to their responsibilities, which protects journalism in the public interest, and which is sustainable, is with the help of the law.

The law can give big news organisations obligations similar those they already have in tax, data protection and health and safety; it can ensure they keep to those obligations; and it can make sure ordinary people have access to redress.

Nor should such a system, enabled by law, apply to everyone. Far from it. It should only apply to the biggest news organisations that wield significant corporate power and can cause harm to vulnerable people.

The law is not a cure for all ills, but neither should it be seen as an inevitable precursor to Mugabe’s Zimbabwe. The law should only be used insofar as it enables a fair, effective, and independent system – and no further.

For those who think that any legislation to underpin a regulatory system is incompatible with a free press, that it is the ‘slippery slope’ to government control, I would point them to a country not far from here – Finland.

In 2003 Finland passed a law – ‘The Act on the Exercise of Freedom of Expression in the Mass Media’. This law gave the public a right of reply to misrepresentation in news articles. It gave news outlets a ‘duty to correct’ those articles. And it obliged news organisations to appoint a ‘responsible editor’ who would be liable should the publication breach the law. These laws sit beneath the system of Finnish self-regulation, run by the Council for Mass Media.

This is – by any other phrase – statutory underpinning for self-regulation. And, since it was brought into place in 2003, what terrible effects has this law had on press freedom in Finland? How constraining has it been? Well, last year Finland was Number 1 on the World Press Freedom Index. It has been number 1 in 8 of the last 10 years. Where does the UK sit? Number 28.