In his evidence to the Leveson Inquiry last week, Sir John Major put his finger on one of the central difficulties raised by the political role of the British press. When discussing Rupert Murdoch, he said:

‘I think the sheer scale of the influence he is believed to have, whether he exercises it or not, is an unattractive facet in British national life, and it does seem to me an oddity that in a nation which prides itself on one man, one vote, we should have one man who can’t vote with a large collection of newspapers and a large share of the electronic media outlet.’

In this comment, the former Prime Minister highlights the tension between the concentration of media ownership and political equality. Access to a mass audience via the media is an important political resource and the way that resource is distributed has implications for the workings of British democracy.

The contrast between the equal right to vote and unequal opportunities to communicate has been many times before. A similar point, albeit in a different context, was made by Baroness Hale in Animal Defenders International [2008] UKHL 15, when looking at the problems of interests groups buying access to the broadcast media:

‘Our democracy is based upon more than one person one vote. It is based on the view that each person has equal value. […] We want everyone to be able to make up their own minds on the important issues of the day. For this we need the free exchange of information and ideas. We have to accept that some people have greater resources than others with which to put their views across. But we want to avoid the grosser distortions which unrestricted access to the broadcast media will bring.’

Unlike the interest group, the media owner does not have to buy access to the media. Instead, he can use his own property to send messages to the electorate. In both contexts, the basic problem is the same – that economic resources, whether through money or press ownership, are used to determine who can communicate effectively to large section of the public. Of course, as Baroness Hale acknowledges, we cannot demand absolute equality in communicative opportunities. We should, however, be concerned by the biggest disparities.

In relation to the broadcast media, the problem is tackled from two directions. Paid political advertising is banned  (which stops money buying access) and political coverage is subject to obligations of due impartiality (which stops owners and editors using the media overtly pushing their own views). In relation to the press, things are different. During an election campaign, anyone can buy political advertisements in the press – but this is subject to spending limits. For example, in the 12 months prior to a general election, registered third parties (anyone spending over £10k) are subject to a limit of just under £1 million when campaigning for parties in the UK. All electoral spending by an interest group, whether on advertising, organizational costs or rallies, has to come within this limit.

Given the value of New Corp’s political output in an election year, you might ask how these election regulations apply to the press. The answer is that they are exempt. Section 87 of the Political Parties, Elections and Referendums Act 2000, provides that the publication of any matter relating to an election, other than an advertisement, in a ‘newspaper or periodical’ does not count as a regulated third party expense. Nor does favourable coverage in the press count as a donation in-kind to the political party. So while Sir John Major finds it an oddity that we have ‘one person one vote’ while allowing a non-voting media baron to wield such political influence, the privileged position of the press is preserved in law. While interest groups and individuals can use only a limited amount of economic resources on political activity, the press enjoys a special status and can use its resources (through its own pages) as much as it pleases. That has the potential to enhance the power of the press further – if parties and groups can buy limited media access, then winning the favour of editors and media owners becomes all the more important.

After expressing his view, Sir John Major did add ‘I don’t think you could or should, in a sort of diverse world in which we live, actually do anything about that’. I agree that the problem cannot be solved by applying election spending limits to the press. That would inhibit the important democratic functions of the media. Nor can the privileged position of the press be addressed by getting rid of the controls on election spending. While that would subject everyone (including the press) to the same lack of regulation, it would not make the political process any fairer. So to some extent, we are stuck with this position where communicative resources during elections campaigns are limited for everyone other than the press.

I don’t think that it is something we cannot do anything about. Revisiting controls on media ownership is a way of addressing this issue (see the proposals from the CMR). Questions of ownership are squarely concerned with the way an important political resource is distributed. If that resource is to enjoy privileged status in law, then it should not be held by such a small group of people.  That is why it is important that Leveson does not exclude this question from his report.

The exemption from election spending controls could also be something that has to be earned. The protection could be conditional on newspapers being subject to the regulatory ambit of whatever body is to replace the PCC. So while the press would be able to engage in unlimited electoral campaigning, it would have to meet certain standards if it is to benefit from that privilege. Another option is to make the exemption conditional on public service-type obligations, such as granting access to political parties during election campaigns (an equivalent of party election broadcasts in the print media). That means that if a newspaper engages in election campaigning, then it has to give certain parties with an opposing view a chance to reply. This would obviously be a controversial proposal and raises a number of issues that are beyond the scope of this blog post (but which I have discussed elsewhere). However, this type of idea at least engages with the issues raised by the privileged status of the press.

There is, of course, the issue of internet publications. It is not clear to what extent newspaper websites and other online content are deemed to be ‘newspapers or periodicals’ for the purposes of the exemption. The VAT exemption, which is cast in similar terms for newspapers and periodicals, is currently interpreted not to apply to digital editions. It would, however, be problematic to take the same interpretation for the election spending rules. Consequently, some definition of a digital newspaper will need to be found.  None of the issues raised above are easy to resolve, but all are important and lie at the heart of the intersection between a free press and fair electoral process.

Jacob Rowbottom is a Fellow of University College, Oxford