Anyone reading our national press in the months since Leveson reported would have had little understanding of his proposals or their underlying rationale. With very few exceptions our newspapers, led by the powerful triumvirate of News International, Associated Newspapers and the Telegraph Group, have indulged in a litany of obfuscation, distortion, personal vendettas and exaggerated concerns about the potential impact of these proposals. There has been no pretence of fair-mindedness or proper journalistic enquiry.
As the great former Sunday Times editor Sir Harry Evans said in his Cudlipp lecture in January this year: ‘The misrepresentation of Leveson’s main proposal is staggering. To portray his careful construct for statutory underpinning as state control is a gross distortion’. It will come as no surprise that despite his towering reputation in journalism, Evans’ comments were reported in precisely one newspaper: The Guardian. The hysteria following all-party agreement on the Royal Charter took those distortions to a different level. In a completely unreported speech in Dublin in March, Labour peer David Puttnam described the coverage as ‘straight out of the Joseph Goebbels propaganda rulebook’.
Myth 1: Newspapers all over the world have condemned Britain’s slide into state censorship.
In a classic example of modern-day churnalism, thanks to internet and online journalism networks, emotive and inaccurate phrases from a supposedly informed British press have been happily regurgitated around the world. Without irony, the Zimbabwe media council was quoted in the Telegraph as warning of the dangers of statutory regulation in Britain. The mighty New York Times talked ominously and ignorantly about ‘a system of government regulation of Britain’s vibrant free press’. The Sunday Times quoted Le Monde as saying that the regulator would have ‘little respect for basic liberties’. This was the same Sunday Times that commissioned a poll which, despite vehement and repeated newspaper threats that 300 years of press freedom was being ruthlessly terminated, showed public support for the proposed Royal Charter remaining solid by a margin of more than two to one. Strangely, the newspaper never mentioned its own poll—an omission that some would call an act of deliberate censorship. For countries which are emerging democracies or under the thumb of autocratic dictators, any suggestion of ‘state’ regulation is understandably anathema. That the phrase has been deliberately and dishonestly appropriated by powerful UK newspapers to misrepresent Leveson’s proposals will not be immediately obvious to journalists fighting— sometimes in fear of their lives—for real editorial freedom. It is a shameful misrepresentation.
Myth 2: Neither Leveson nor the proposed new system takes any account of bloggers and small publishers.
It was made clear during the passage of the Crime and Courts Act that that all but the largest news bloggers will be immune from potential penalties if they choose not to join a self-regulator. Various amendments ensured that blogs will not be classed as ‘relevant publishers’, which entails a publication passing four tests: that it must publish ‘newsrelated’ material, must be published in the course of a business, must be written by different authors and must be subject to editorial controls. Also exempt are all publications classed as ‘micro-businesses’—that is, those with fewer than ten employees and an annual turnover below £2 million (a definition used by the Department for Business, Innovation and Skills). Any exempt publication could still, if it chooses, join a self-regulator to take advantage of the legal benefits.
Myth 3: This is a covert and sustained attack on tabloid journalism.
Even before Leveson had reported, the Daily Telegraph wrote: ‘There is a real danger that, because some newspapers allegedly behaved in a criminal manner, efforts will be made to reduce the press to an emasculated cipher of high-minded opinion’. Since then, a few self-proclaimed populists have argued (with no supporting evidence) that attempts to develop a new regulatory system are part of an elite conspiracy to deprive ‘ordinary’ people of massmarket journalism which is written to entertain rather than inform. In fact, there is nothing whatsoever in the proposals which will prevent the best tabloid journalists from writing about anything, from political dealmaking to showbiz gossip. This is not a debate about tabloid versus broadsheet values; it is simply about preventing unacceptable newsroom practices in every newspaper in the country. Proponents of this myth confuse popularity with unethical and unlawful newsroom practices that have no place in a civilised society and which have inflicted real trauma and distress on newsworthy victims— whether they be ordinary citizens or public figures.
Myth 4: Phone hacking, bribery and police corruption are all illegal and any problems can and should be dealt with through proper police enforcement.
This has been a powerful mantra, in particular by former newspaper editors who are keen to convince the world that the whole Leveson inquiry centred on criminal phonehacking and corruption. As News International’s settlements continue to mount, and as we await the start of criminal trials involving senior editorial figures including Andy Coulson and Rebekah Brooks, it will become even more tempting to reduce the problem to one of preventing criminality. It is therefore all the more important to remind ourselves that many of the calculated and cynical breaches of ethical codes reported during Leveson were certainly not circumscribed by the criminal law. There were the intrusions into private grief,on which Sheila Hollins gave such graphic evidence. There was the pursuit of friends and relations of newsworthy figures, sometimes with tragic consequences: Charlotte Church, for example, told the inquiry how the front-page splash of her father’s affair drove her mother to attempt suicide (at which point the newspaper demanded an exclusive story on her attempted suicide in return for not publishing a second instalment on the affair). There was the News of the World front page devoted to Kate McCann’s private, intimate diaries after the disappearance of her daughter, which the newspaper had somehow obtained (almost certainly from the Portuguese police) and published without consent or any prior notice. It left her feeling, in her own words, ‘mentally raped’. There was plenty of evidence, as Leveson himself concluded, of intrusions into privacy and dignity, of unlawful or unethical treatment of individuals through harassment, and of acquisition of private information through blagging, surveillance, subterfuge and similarly intrusive methods. Very little of this was criminal, and even where data protections laws might have been breached, no journalist has ever been prosecuted.
Less well known, but even more chilling, was the case of David Nutt, who, in 2008, was chairman of the Advisory Council on the Misuse of Drugs (the so-called ‘drugs tsar’). On the basis of scientific evidence, he came to the controversial view that alcohol and tobacco were more harmful than ecstasy and LSD, and objected to the reclassification of cannabis as a class B rather than class C drug. In late 2009 he was sacked by the government. His views on drugs were anathema to newspapers like the Mail and the Sun, who went much further than vigorous condemnation in their editorial and opinion columns (to which they were perfectly entitled). Within a week of his dismissal, the Sun published a double-page spread making allegations about all three of David Nutt’s children. It published a photo of his younger son taken from Facebook, saying that it showed him apparently smoking dope, when in fact it was a roll-up cigarette. It referred to photos of his daughter apparently drinking underage (she wasn’t) and of his older son ‘prancing naked’ in the snow in Sweden (he had just emerged from a sauna). These errors were ‘resolved’ by the Sun publishing a tiny letter on page 53 written by Nutt’s son putting the record straight. A similar story published online by the Mail the following day was defended on the grounds that they had taken it from the Sun! It was removed, but there was no apology. These stories might have been malicious and deliberately designed to intimidate a public figure whose views the newspapers despised—but they were not illegal.
Myth 5: This is a self-serving celebrity-driven campaign for censorship in which politicians are conniving as revenge for the MPs’ expenses scandal.
Attributing the drive for reform to calculated self-interest is a seductive refrain, not least because it plays to a fairly common (though by no means universal) view that the rich and famous should accept a measure of intrusive reporting. Even if we accept the highly dubious proposition that celebrities are ‘fair game’, very few would argue that the same principles should apply to their friends, relations and children, or to those whose public status derives from great achievements (think Olympic medallists or award-winning writers). In fact, while a handful of celebrities have been prepared to lend their name to the campaign for reform (with predictable consequences, as their previous indiscretions are gleefully repeated at every opportunity), the vast majority of those involved are either non-famous victims of press abuse or those involved in civil society groups which have—in some cases—been campaigning for better journalistic standards for many years. It is difficult to sustain the claim that meaningful reform is being driven by celebrities when it is backed by the NUJ, free-speech campaigners such as Tom Stoppard and Salman Rushdie, the vast majority of journalism and media academics, civil society groups and—according to repeated public opinion polls—the general public.
Then there are the politicians. There is a terrible irony in an argument which attempts to portray parliamentarians as greedy guardians of their own privileged self-interest while a selfless press campaigns to expose their arrogant humbug. While a handful of misguided (and misinformed) members of either House might have convinced themselves that a reformed system of regulation will be some kind of revenge, the vast majority are well aware that the parliamentary Charter will offer no protection whatsoever from the very proper scrutiny of corruption and abuse of power which good journalism seeks to pursue. Genuine public interest journalism is wholly unaffected by the Charter framework for a self-regulator. Those MPs and peers who try to profit from their position, through manipulating their expenses or taking bribes in return for parliamentary questions or privileged access to PR companies, will continue to find themselves exposed to public ridicule and contempt. While the press loves to portray our parliamentary representatives as motivated by little more than the lust for power and money (and sometimes sex), the truth is that the vast majority recognise they are acting out of necessity and in the public interest against one of the last bastions of unaccountable power.
Myth 6: The parliamentary charter was agreed between the three parties without any consultation with the press, and was dictated by the pressure group Hacked Off.
It is worth reminding ourselves of what senior editorial figures have themselves said about their involvement in negotiations since Leveson published his report in November last year. Once the notion of a Royal Charter had been proposed by the Conservative Party, through the Cabinet Office minister Oliver Letwin, as a means of avoiding statute (Cameron’s ‘Rubicon’), newspaper editors were closely involved in determining its scope and content. On 5 February this year, the Conservative peer and Executive Director of the Telegraph Group Lord Black told the House of Lords: ‘Since the [Leveson] report has been published, the industry has been working extremely hard with the Government to finalise the details of a regulatory scheme’. After the Conservative party’s first draft Charter was published on 12 February, speaking on behalf of major publishers, Trinity Mirror’s legal director Paul Vickers described it as ‘the fruit of two months of intensive talks involving the newspaper and magazine industry and all three main political parties’. Despite repeated assurances by editors and publishers that they wished to embrace Leveson’s recommendations, it was clear that their draft Charter felt short in several respects. Most significantly, and in direct contradiction of Leveson’s express requirement for political independence, it allowed party political peers to serve on both the Recognition Panel and on self-regulatory boards, as well as their respective appointments bodies.
A month later, on 15 March, the Labour and Liberal Democrat parties published an amended Royal Charter designed to implement the majority—though not every one— of Leveson’s proposals, in particular cementing independence from both industry and political influence throughout the proposed regulatory structure. In doing so, they sought advice from Hacked Off as the organisation representing the victims of press abuse. The final version was agreed by all parties with minor modifications on 17 March, and on 18 March the following somewhat convoluted motion was put to the House of Commons: ‘the Speaker put the Questions necessary to bring proceedings on consideration of new Clauses and new Schedules standing in the name of the Prime Minister and relating to press conduct and remaining new Clauses and new Schedules relating to press conduct to a conclusion’. In one of the most overwhelming parliamentary majorities of the modern political era, the motion was voted through by 530 votes to 13. It was the moment at which the country’s elected representatives— not celebrities, not Hacked Off, not the campaigning civil society groups— finally put decades of inaction behind them and recognised that Parliament must establish some independent accountability for an industry which had for so long disregarded its own ethical codes with complete impunity.
This is an excerpt from a longer article in the current edition of The Political Quarterly, entitled ‘Leveson Past, Present and Future: The Politics of Press Regulation’ [pdf].
There is no doubt that the press can be awful but laws do already exist to deal with most of their excesses and Steve Barnett’s claim that “many of the calculated and cynical breaches of ethical codes reported during Leveson were certainly not circumscribed by the criminal law” is disingenuous. Remedies are also provided by the civil law a truth pointedly overlooked by Mr Barnett when he refers to the case of David Nutt and says, “These stories might have been malicious and deliberately designed to intimidate a public figure whose views the newspapers despised—but they were not illegal”. These were untrue allegations and innuendos that clearly fell under existing defamation law and a brief glance at Wikipedia’s entry on English Defamation Law makes it clear that this is already widely considered to be draconian.
“English defamation law puts the burden of proving the truth of allegedly defamatory statements on the defendant, rather than the plaintiff, and has been considered an impediment to free speech in much of the developed world. In many cases of libel tourism, plaintiffs sued in England to censor critical works when their home countries would reject the case outright. In the United States, the 2010 SPEECH Act makes foreign libel judgements unenforceable in U.S. courts if they don’t comply with US free speech law, largely in response to the English laws.”
In order to ensure that apologies by newspapers are more appropriate, a small amendment to the 2013 Defamation Act would suffice. We don’t need a Royal Charter. To say that it is a “myth” that “Phone hacking, bribery and police corruption are all illegal …” is plainly untrue, and to suggest that opponents of the Charter are promoting the myth that “any problems can and should be dealt with through proper police enforcement” is a distortion of the truth. There will never be a case in any area of life where “all problems can be dealt with” but certainly many of the problems associated with the excesses of the media can and should by dealt with, not only by proper police enforcement and the criminal law, but also through the existing civil law.
It is not clear why the somewhat superficial opinions of Sir Harry Evans should be reported in every newspaper, given that he is an American citizen, living in the USA who will be un-affected by the Royal Charter, but it is good to see that he has lost none of his instincts for journalistic hyperbole. Mr Barnett is not short of hyperbole either, quoting, with approval, David Puttnam’s depiction of the coverage of the all-party agreement as “straight out of the Joseph Goebbels” propaganda rulebook”. So, as we’re in hyperbolic mode, perhaps it would be in keeping to say that, like Goebbels, those in favour of the cross-party Royal Charter, “think of the press as a great keyboard on which the government can play”?
It would be in keeping, but, of course, it might also be unfair. However it is not unfair nor is it any exaggeration to suggest that the Charter does represent a genuine threat to the freedom of the press. The draft Royal Charter proclaims that it is about “press self-regulation” but actually creates what Brian Cathcart describes as “a totally independent body called the Recognition Panel, which will act on behalf of the public to ensure that a future press self-regulator meets basic, specified standards of effectiveness and independence”. This supposedly independent body, supposedly acting on behalf of the public, will establish the parameters of and effectively control and regulate the ‘self-regulatory body’, so, in reality, this is not self-regulation at all.
The regulatory body will inevitably consist of those most prepared to follow the dictates of the Recognition Panel. But who will these ‘independent’ people who sit on the board of the Recognition Panel be? And how do we guarantee that they are completely devoid of any political motive or bias or that they remain immune to political or ideological pressure?
At least active politicians and most representatives of the press are open about their views. It seems likely that, from the start, the Recognition Panel will be stuffed with powerful establishment figures that will be neither representatives of the press nor elected politicians. This means that an unaccountable elite will be telling the press what it can and cannot say.
300 years of press freedom is indeed under threat.
It might not be direct regulation by members of parliament or the visible state, but, what in Egypt is called the ‘deep state’ will certainly have an influence and to say that the phrase ‘state regulation’ “has been deliberately and dishonestly appropriated by powerful UK newspapers to misrepresent Leveson’s proposals” might in itself be described as “a shameful misrepresentation.”
But the Charter is a threat not just to the freedom of the press but also to parliamentary democracy. The unconstitutional entrenchment of the cross-party Charter with its requirement of a unanimous resolution by Recognition Panel and vote of two-thirds of both Houses of Parliament to alter the Charter puts, as Brian Cathcart says, “the charter beyond the reach of a future government wishing to meddle with the text”. This is a terrifying precedent. No Parliament should be able to bind a future parliament. That is our guarantee against tyranny. That MPs could casually throw away the sovereignty of parliament by supporting what is being presented as an innocuous document whose only purpose is to protect the public from the very worst excesses of the press, is, as the old saying goes, like turkeys voting for Christmas.
Opinion polls might show “solid support” for it, but most people have not really thought through the long-term consequences of the Royal Charter for the Independent Self-Regulation of the Press. It is a foolish and dangerous proposal and must be resisted.
The recognition body is meant to be there to check whether or not the press complaints body is doing its job properly. [Great!]
Which means that the complaints body will come to its decisions with an eye on whether or not the recognition body would approve. [Probably a good thing.]
Which means that the recognition body has a great deal more soft power over the complaints body than a single three-yearly review. [Well, that’s not all bad, I suppose.]
So the opinions of the members of the recognition body will carry a lot of weight with the complaints body, a lot more weight than anyone else. [Oh.]
So people who are annoyed by the complaints body’s marginal decisions – like lobby groups, politicians, press moguls – will just lobby members of the recognition body. [Ah.]
Since the recognition body is likely to either be Ofcom or Ofcom-backed, we can take comfort in the fact that it has never been subject to political pressure and has always been firm in its decisions. [http://www.theguardian.com/media/2011/nov/30/ofcom-iran-press-tv “Ofcom reverses decision to revoke licence of Iran’s Press TV. Foreign Office denies government intervened in decision to switch penalty to £100,000 fine as tensions rose with republic”]
On the other hand, wouldn’t it be simpler, less hypocritical and more open to simply have a statutory regulator? One that is actually accountable. Because it’s pretty clear that only a regulator with the power to subpoena evidence would be able to carry out the sorts of investigations that would catch phone-hackers. Or do people honestly believe that the 60-odd journalists who have been arrested by police should have only been dealt with by a regulator and not the criminal law?