Opinion: “We must have statutory regulation – and liberation – of the press” – Carl Gardner

29 11 2012

If you’re interested in legally minded reports about how the press should be regulated, then there’s something you should read before tomorrow. Sir David Calcutt QC’s 1993 Review of Press Self-Regulation is worth another look, nearly twenty years on.

In 1990, Sir David chaired a committee on privacy and related matters, which recommended a toughening of the press’s self-regulatory regime, and the creation of a “Press Complaints Commission”. It also said that, if the press failed to demonstrate that non-statutory self-regulation could be made to work effectively, a statutory tribunal should be established. The press, in other words, should be given one last chance to regulate itself properly – a recommendation that led the then Heritage Secretary David Mellor to say, famously, that the press was

drinking in the last chance saloon.

Two years later,  he asked Sir David to review the effectiveness of the new method of self-regulation. He wasn’t in office to receive Sir David’s recommendations: as Sir David recounts in his review (para. 4.65), in July 1992

The People published details of a liaison between actress Ms Antonia de Sancha and Mr David Mellor MP. The affair came to light after a telephone conversation between the two had been recorded.

The press having tried to regulate its Mellor problem itself, Sir David reported to Mellor’s successor, Peter Brooke, that (summary, para. 5)

The Press Complaints Commission is not, in my view, an effective regulator of the press … It is not the truly independent body which it should be. As constituted, it is, in essence, a body set up by the industry, financed by the industry, dominated by the industry, and operating to a code of practice devised by the industry and which is over-favourable to the industry.

and that, in the two years since the first report (summary paras. 8-9),

Nothing that I have learned about the press has led me to conclude that the press would now be willing to make, or that it would in fact make, the changes which would be needed.

Accordingly, I recommend … that the Government should now introduce a statutory regime.

The Calcutt moment, though, was missed. The PCC exists still, and tomorrow, nearly twenty years later, Lord Justice Leveson will report on whether statutory press regulation is now finally required.

Of course statutory regulation is needed. Opponents of the idea call themselves the “Free Speech Network”, and say the press, which exists to hold the state to account, must not be subject to state control. But the argument is obviously and hopelessly flawed. Journalism is not only about holding the state to account: it is a much broader and deeper endeavour addressing not only government but sport, fashion, food, film, relationships, health, science, work, religion and even law. Part of the press at least thinks it exists to report on individuals – where they go and what they wear. Holding government to account is only a small part of what journalism does. Crucially, the press exists among all these other things to hold private power to account. The state is not the only power in the land, nor power’s only abuser. A serious abuser of power over individuals, largely unchallenged by the press for obvious reasons, has been the press itself.

Statutory regulation is not the same thing as “state control” – a point well made by David Allen Green. One of the many problems with the current system of self-regulation is that, if a media group refuses to recognise it, like Richard Desmond’s Express, there’s nothing in the world anyone can do. That’s all you need to know in order to laugh continued self-regulation out of court. Only legislation can require newspapers to submit even to their own enforcement of their own code. As David Allen Green put it:

Unless a regulator has a statutory basis for its powers, the effectiveness of the regulator is entirely at the behest of the regulated.

The case for statute is, on that ground alone, irresistible.

What statute – and no other arrangement – can do is set up a genuinely independent regulator: independent not only of the state but of the press. I won’t go into the detail of what model I’d like to see. The detail matters less than the principle. But in brief, we need a regulator whose decisions are read, respected and feared by journalists, editors and proprietors. Yes, I do mean feared. That’s why I wrote it in italics. If you suspect that makes me an enemy of free speech, remember that I also said respected. Journalists, editors and proprietors are not fearless today. They fear not the judgment of anyone they respect, but letters from solicitors instructed by the rich.

To conclude, I agree with the public: I want an independent press regulator established by law. Now’s the chance to achieve it. There is a suspicion that the Prime Minister may duck it, preferring press favour. If he does, it’ll be his worst mistake. Charles Moore is right to compare newspapers today to the trades unions of days gone by. Cameron may choose to play Harold Wilson, and cast Lord Justice Leveson as Barbara Castle. But Castle was right, Labour gained no advantage from Wilson’s abject submission, and the unions, once they’d gratefully destroyed Labour government, had to be tackled not long afterwards by Margaret Thatcher. If Cameron chooses to be the prisoner of the press, as Wilson and Jim Callaghan chose to be prisoners of the unions, he’ll deserve his political fate.

I don’t believe in sweetening this pill, or buying the press off with concessions. It’s high time for proper regulation, and that’s that. Nonetheless, there is a second bird visible on the horizon – and Lord Justice Leveson should stone it. The bird is libel reform (and maybe privacy too).

Libel in England is a scandal, and Parliamentary proposals to reform it have so far been pretty pathetic. Instead of tinkering with the existing law on the assumption that judges and courts are the right enforcers of it, we ought to take a radically different approach. Libel and privacy should be dealt with by the new independent regulator, or a statutory tribunal separate from and independent even of it. It should be much quicker and cost much less than the courts, it would be fairer and more accessible to the non-rich, could show more understanding of the importance of risk-taking journalism and have power to award more flexible remedies.

This body could sit alongside the courts, acceptance of its rulings being a defence to a libel or privacy action. But that’d still mean newspapers and their victims faced chillingly expensive attempts by the rich to “appeal” regulatory rulings. No. The way to end the libel scandal, and the best way to improve the way we deal with privacy cases, is to put these matters in the hands of the expert regulator or tribunal instead of the courts. It should be the exclusive first-instance regulator of press intrusion on reputation and privacy. The only appeal to the courts should be on the basis that the tribunal has acted unlawfully.

For this to work, the tribunal would need power not only to order apologies but, in privacy cases, to act before publication and order prior restraint in rare, appropriate cases. That’s the same power the courts have now. It sounds draconian at first, I know; but otherwise the courts, which do of course have power to grant injunctions, will remain the rich litigant’s first choice.

The advantages of my proposal for the press are, first, the cost saving that would result from having these cases mostly decided outside the courts; second, the demotion of financial compensation and legal costs to the status of rare, unimportant remedies, taking away the most “chilling” factor of all on free speech; and finally the vesting of power in an expert body, probably containing a substantial minority of journalists, rather than in judges.

Those, then, are my last-minute suggestions for Lord Justice Leveson. Statutory regulation is a no-brainer; we obviously need it. But the regulator should earn its keep by annexing libel and privacy, keeping those disputes out of the courts and subjecting them to quick, expert resolution with money a peripheral concern. If that system worked, in due course the regulator could even take on statutory responsibility for contempt of court – ending the current “state regulation” by the Attorney General.

And there should be a defence to any criminal charge – even phone-hacking, theft, fraud and burglary – if the defendant can bring evidence that what he or she did was reasonable journalism in the public interest.

Finally, as a reader of this blog (thank you) you’re entitled to know whether I think blogs should be regulated in the same way as the press. My view is this. It’s the culture and ethics of the print press that have caused all this trouble; so it’s the print press and its online manifestations that should be subject to compulsory regulation. Others, like independent bloggers, should be able to join voluntarily and for free, at least if they’re non-commercial. I’d positively want to sign up to a system along the lines I’ve set out (or if it just offered some defence to legal action, or even if it was simply free for non-profits). I’d want to learn from the standards applied by the regulator, and to be shielded from the threat of litigation. If other independent bloggers wanted to remain outside and face the old-fashioned chill winds of libel and privacy law, it should be up to them.

A new system could, finally, properly regulate the press. It could also liberate it from its current legal shackles and make it freer, less self-censoring and less servile than ever. But neither can happen without legislation.

This post was originally published on the Head of Legal Blog and is reproduced with permission and thanks


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2 responses

29 11 2012
Julian Petley

And who do we think will be the next politician to meet the same fate as David Mellor at the hands of the press? It’s worth remembering that Mellor himself didn’t favour the statutory option – but that didn’t stop him being hung out to dry the press, which claimed that the reason why politicians wanted to ‘control’ the press was precisely to stop newspapers revealing their secrets.

3 12 2012
Law and Media Round Up – 2 December 2012 « Inforrm's Blog

[…] Opinion: “We must have statutory regulation – and liberation – of the press” – Carl Gardne… […]

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