Who stands for the public in Murdoch vs the government?
Editor’s introduction: In this essay, Geoffrey Robertson QC, who has extensive experience representing media companies and free speech cases, explores the role of the Leveson Inquiry, established by UK Prime Minister David Cameron in July to conduct a “judge-led inquiry into the culture, practices, and ethics of the press and the extent of unlawful or improper conduct within News International and other newspaper organisations.” Robertson places the inquiry in the historical context of media regulation in the UK. He casts a skeptical eye on the prospects for meaningful media, especially given the failures of past similar attempts and the low credibility of the UK’s Press Complaints Commission (PCC) in either protecting privacy or enforcing its ethical rulings.He then explores various proposed alternative structures to media regulation. Since the essay deals with UK-specific material, British grammar conventions have been preserved.
By Geoffrey Robertson
The views expressed are his own.
The wide-ranging remit of Leveson I is to inquire into “the culture, practices and ethics of the press”, its relations with police and politicians, and to make recommendations for “a new and more effective policy and regulatory regime” which upholds freedom of speech and media independence “whilst encouraging the highest ethical and professional standards”. This is a Royal Commission on the Press by another name: it is the fourth since the Second World War, and its terms of reference are much wider than Sir David Calcutt’s 1991 and 1993 enquiries into privacy and press ethics. Its Report will have more clout than recent reports on the subject by Parliamentary committees. Leveson II – specifically into unlawful or improper conduct by News International (or other news organizations), and by the metropolitan police, must await the conclusion of trials and appeals resulting from “Operation Weeting” and so will not get underway until 2014 at the earliest. At the first stage, recommendations will be made for legislative and policy changes in a year’s time, possibly to be introduced in conjunction with the government’s Defamation Bill.
In choosing Lord Justice Leveson to report on press discipline, the government opted for a sitting judge in the mould of Lord Hutton, from a criminal (mainly prosecution) background and with no evident empathy towards the media. Sir David Calcutt had some free speech credentials, as did Sir Hartley Shawcross (who chaired the second Royal Commission) whilst the third and most recent Commission was chaired by media-friendly Lord Macgregor (assisted, in understanding media law, by Leonard Hoffman Q.C. ) Leveson is to be “assisted” in understanding media issues by six expert “panelists” whose role and power (e.g. to append their own, or dissenting, reports) is unclear. Their “expertise” in the sharp end of news gathering is questionable – two are former political editors who were members of the discredited “lobby” system, together with a former Chief Constable, the Director of “Liberty”, an ex-head of OFCOM and a former chairman of the Financial Times. The omission of any distinguished practitioner of investigative journalism is notable. It does not mean that Leveson will not be supportive of public interest journalism, but it does mean that the press will have to make a convincing case for its own freedom from the kind of statutory restraints requiring ‘due impartiality’ and “good taste” that better-behaved (and less investigative) broadcasters have long had to endure. The demands for statutory regulation, for more criminal laws and for a new civil wrong of invasion of privacy will be difficult to resist, and already there have been siren calls to subject editors and journalists to “professional” regulation – including fines and disbarment – of a kind that have long been visited upon errant doctors and lawyers.
The case against “professional” discipline
To the latter kind of reform, there is a fundamental objection. Journalism is not a profession. It is the exercise by occupation of the right to free expression available to every citizen. That right, being available to all, cannot in principle be withdrawn from a few by any system of licensing or professional registration. This nation has not had a press licensing system since the Stationers Company collapsed from extortion and fraud in 1695. The sinister Restoration office of “Surveyor of the Press,” empowered to seize unlicensed presses and prosecute disrespectful journalists and printers, is no more than a distant and bad memory. However attractive it may seem to license newspapers like television companies and withdraw licences as punishment for repeated ethical lapses (as OFCOM very occasionally does with broadcasters), constitutional history revolts at the prospect of a government body silencing a newspaper by administrative diktat, or a journalist by ordering him or her not to write. As Milton put it, “The attempt to keep out evil doctrine by licensing is like the exploit of that gallant man who thought to keep out the crows by shutting his park gate”.
Of course, the right of free speech may be restricted by rules of law that apply to all who take, or are afforded, the opportunity to exercise that right by speaking or writing in public. So far as criminal laws are concerned, these apply to journalists as forcefully as to anyone else, and may have no public interest defence – rightly so in the case of bribing the police. One discomforting matter that Leveson must consider is by what extraordinary arrogance have some newspaper executives assumed that paying police officers for information is somehow exempt from anti-corruption statutes in force for over a century. And how came it that almost all journalists and their news organisations were ignorant of the fact that telephone hacking was made an offence – by two separate statutes – in 1998 and again in 2000? If Leveson allows cross-examination of editors, legal managers and executives on these issues in stage 1, there may be blood on the carpet. The result could be a recommendation for more criminal laws; it will certainly urge more prosecutions, heavier penalties, and (possibly and dangerously) the removal of the few ‘public good’ defences that remain.
As for civil law, a new tort of invasion of privacy is an odds-on bet to be a Leveson recommendation. This is not as dramatic as it sounds – the judiciary has in the past few years been moulding a civil wrong out of the plasticine of Article 8 of the European Convention on Human Rights, allied to the old common-law wrong of breach of confidence, and it is high time that this development received statutory formulation, especially since it is now clear that a P.C.C. self-regulatory system cannot offer an effective remedy for victims of privacy invasion. But a good deal of press freedom will depend on the wording of the new law – especially the formulation of the public interest defence. Whether the media, with its chronic inability to make common cause to defend its own freedoms, will be able to influence Leveson’s formulation of the new tort is uncertain, although this is one area where support should come from broadcasters, since they will be equally affected by any legislation.
Self-regulation – a brief history
The central debate for Leveson will be whether, and if so how, to replace self-regulation. It is ironic to reflect that it first came about through the efforts of the National Union of Journalists and of the journalist MP Michael Foot, whose swinging attack on Fleet Street editors as “stooges, ciphers and sycophants” influenced the first Royal Commission on the Press (which reported in 1949) to recommend a voluntary Press Council which “by ensuring undesirable types of journalistic conduct…would build up a code of conduct in accordance with the highest professional standards”. This was, of course, at a time when English press law – especially of libel and contempt – was at its most repressive, and the object of the reformers was not only to protect journalists from being forced to write propaganda to accord with the political views of proprietors, but to have a powerful body which could champion press freedom. The introduction of a private members bill to set up a statutory disciplinary body spurred the creation of the Press Council in 1953. It was chaired by the proprietor of The Times, had no lay membership and operated in the interests of the political establishment – its first adjudication was a ruling that a Daily Mirror readership poll on the question of whether Princess Margaret should marry Group-Captain Townsend was “contrary to the best tradition of British journalism”. The contempt for the Council in its early years among the denizens of Fleet Street was expressed in the response of Daily Express columnist John Gordon to a reader who threatened to report him: “You can report me to the Press Council, Madame Tussaud’s, the Society for the Protection of Sputniks, NATO, UNESCO, or the Dancing Dervishes’ Association as you wish. May you enjoy yourself”.
This first attempt at self-regulation was condemned as wholly ineffectual by the second Royal Commission, in 1962, chaired by Lord Shawcross. It warned that “if the press is not willing to invest the Council with the necessary authority and to contribute the necessary finance, the case for a statutory body with definite powers and the right to levy the industry is a clear one”. Shawcross did make one suggestion that might have saved self-regulation from the jibe of toothlessness, namely that the Council should take powers by contract with proprietors that would enable it to require its adjudications to be published in full and to dictate their prominence. Such contractual obligations would be specifically enforceable by court order, and it is a measure of the obtuseness of the newspaper industry that it has always refused to adopt this approach – the only effective form of self-regulation. It may be offered to Leveson in a last-ditch effort to avoid statutory regulation, although it is probably too late – the withdrawal of Express Newspapers from the Press Complaints Commission demonstrates that sections of the industry cannot now be trusted to enter into agreements to publish adverse adjudications with directed prominence and will certainly not volunteer to bind their newspapers to pay compensation to victims of their misconduct.
The third Royal Commission on the Press, reporting in 1977, found evidence of “flagrant breaches of acceptable standards” and “inexcusable intrusion into privacy” and demanded that the Press Council take more powers to ensure rights of reply and that it deliver more vigorous adjudications. A study published in 1983 found that it was ineffectual and that “self-regulation” had not, and would not, work to improve ethical standards at a time of high competition and falling circulations. This was a period when editors at every level defied and derided the Council: The Telegraph refused to accept its convention on race reporting and The Sun took a malicious delight in vilifying individuals who successfully complained. By 1989 a private members Bill to set up a statutory council was well advanced, with the support of both parties, and was only halted when the government established the Calcutt enquiry. Its report in 1991 pointed out that the Press Council’s dual functions of defending free speech and adjudicating complaints were incompatible. The latter should be undertaken by a “Press Complaints Commission”. It doubted whether the PCC would work effectively as a self-regulator, because of the cynicism of editors and proprietors who had come to regard a voluntary complaints body as little more than an insurance against the advent of a privacy law – a pretence, to the public, that there was some remedy for media intrusion.
After two years of monitoring the PCC, Calcutt in 1993 firmly recommended jettisoning self-regulation once and for all, in favour of a statutory press complaints tribunal with power to injunct newspapers and to fine reckless journalists. John Major’s government dared not antagonise the tabloids that it believed had won it the 1992 election, especially after The Sun exposed David Mellor (who had accused the press of “drinking in the last chance saloon”) and who was bugged whilst having sex with a “resting” actress. Despite further proposals for statutory regulation by the Lord Chancellor’s department and the Natural Heritage Select Committee, neither the Conservatives nor the subsequent Labour government dared to act in the face of media opposition.
Whatever happened to free speech?
It is instructive to note that the old Press Council role of defending free speech – which had been championed by chairmen like Lord Devlin and Louis Blom-Cooper QC – had now fallen by the wayside. No organization has been established either by the press or by a wider coalition including broadcasters and the new electronic media: the press has relied on its political muscle to deter governments from introducing privacy laws, and left occasional challenges in the courts to The Sunday Times, The Guardian and, increasingly U.S. media like The Wall Street Journal. In the past decade it has been noticeable how “the media” as such has failed to make common cause in challenging reporting restrictions in the courts or in appealing first instance decisions which set uncomfortable precedents. It is quite prepared, for example, to demonise Sir David Eady, who has set many of them, but is afraid to appeal him (most notably, News Ltd. failed to appeal his controversial decision in the Max Mosley case). Judges have begun to comment on this failure, and tend to perceive the media as the victim of its own negligence in failing to defend its rights. This criticism has some validity, although judges can be insouciant about the costs of litigation and seem to think that newspapers have money to burn on ‘test case’’ litigation. The first case where ‘common cause’ was made in the Supreme Court – (by The Times, The Guardian and The Economist) – to challenge anonymity orders successfully, was only brought because the lawyers were prepared to act pro bono.
The failure of the media to defend its rights – which are, after all, the rights of the public to uncensored information – is likely to draw critical comment from Leveson. What is required is an organization backed and funded by all sections of the media, (including the BBC, which has an indifferent record in defending media freedom) to research and contest legislative changes that impact upon news gathering, and which can intervene in court cases where media freedom is in issue. It needs to deliver authoritative counterblasts to political attempts to constrain the media, and to alert journalists to new laws and court decisions that impact upon news gathering. The failure of media organisations to recognise the impact of RIPA in 2000 and Section 55 of the Data Protection Act in 1998 in making it illegal to intercept mobile telephone messages, is an example of the need for such an organisation. It could also run training courses in press freedom and code of conduct responsibilities. As its role would be to protect and enhance press freedom it would not require any statutory powers and would not obtain core government funding, but it would certainly improve the “culture” of newspapers. Its first task might be to respond authoritatively to the Leveson recommendations; there was no such body in existence to respond to the Hutton report.
What is happening to privacy?
It has long been the perception of researchers into the Press Council and the PCC that these bodies have been funded by media proprietors with the real purpose of staving off a law against invasion of privacy. For many years the PCC has dutifully played its role in this exercise, routinely boasting in every annual report of its ability to protect privacy and raise the ethical standards of the British press:
the application and observance of the Code are part of the culture of every newsroom and every editorial office…the PCC has clearly raised standards of reporting…most activities which brought newspapers and magazines into disrepute in the 1980’s have long since vanished – and the PCC continues to ratchet up standards on the back of adjudications.
Claims like this have been demonstrably false. The PCC has no investigative powers or procedures, holds no adversary hearings, and never actually monitors the press. Its Code offers only a weasel-worded right of reply to those attacked. Its claim to offer an ‘effective remedy’ for breaches of privacy is untrue and was rejected by the European Commission in Earl Spencer’s case, “the PCC has no legal power to prevent publication of material, to enforce its ruling and to grant any legal remedy against the newspaper in favour of the victim”. The UK government did not contest this conclusion, and in the subsequent case of Peck v UK the European Court held that no remedy can be ‘effective’ unless it includes the prospect of compensation for victims. PCC rulings on paparazzi photographs have been wildly inconsistent, and its code provisions against intrusion into grief and shock, cheque book journalism and payment of “blood money” are regularly breached. It has in recent years provided misguided advice to victims of privacy invasions, urging them to use its ‘free’ services rather than consulting solicitors who could obtain compensation.
The days when the PCC was expected to provide a fig leaf remedy to prevent the development of a law against invasion of privacy are now over. Article 8 of the Human Rights Act has permitted judges to do what they had long wanted to do, at least since Lord Bingham despaired of protecting “Allo Allo” star Gordon Kaye from a journalist who infiltrated his hospital room whilst he was coming round from brain surgery, and conducted an “interview under anesthetic”. The rule in Article 8 that “everyone has the right to respect for his private and family life…” did not seem at first to threaten free speech, since there was a presumption that Article 10 would prevail over privacy considerations if any public interests were at stake. But thanks to court decisions which insist on ‘balancing’ the two rights without making any presumption in favour of free speech, subjective value-judgments by the judiciary have not only protected male celebrities from the free speech of their ex-lovers, but have also suppressed by ‘super-injunctions’ stories of some public import.
Thanks to Article 8, the tabloids have lost their battle to describe what people are like in bed, or even to report whose bed they are in. This is because the impact on children of a father’s sexually incontinent behavior (allied to an ingrained dislike of tabloid sensationalism) will weigh in the judicial mind more heavily than the rights of a kisser to tell or the public to know. The most recent Court of Appeal case shows that we have now reached a stage where judges will ban newspapers from reporting adultery, even when they are merely recording the obvious. A prominent figure in the ‘entertainment business’ was granted a permanent injunction against revelation of a sexual relationship, even though it was well-known within the industry. The court was impressed by the argument that his children would be upset – an argument always likely to move kind-hearted judges more than worldly-wise jurors, who may doubt whether children really run home crying from school on learning that their father is having an affair with a topless model.
Whether these judge-made developments in the law of privacy are satisfactory is debatable: the ‘celebrities’ are invariably male, and the free-speech rights of women they may have treated badly are overridden. But the simple fact is that the courts now offer an ‘effective remedy’ for breach of privacy, by issuing pre-publication injunctions and awarding substantial damages (Max Mosley was awarded £60,000) and the PCC cannot compete. It claims to offer a secret ‘hotline’ to editors, whom it can pressure into non-publication, although its claims to success in this respect are difficult to evaluate. For example, it boasts of being able to help the poor, bereft of lawyers, to stop embarrassing publications by contacting editors, although Desmond Browne QC has told of using this “behind the scenes” service on behalf of a public figure, who evidently had the funds to instruct a QC. It is unsatisfactory, in any event, to have a quasi-judicial organisation exerting “behind the scenes” pressure on an editor in cases where there may be public interest in the story. It will be for Leveson to decide whether to arm the PCC with the array of statutory powers recommended by Calcutt, including injunctive powers, or to leave the enforcement of privacy protection to the courts.
The Leveson I enquiry will doubtless recommend that Parliament legislate for a new civil wrong, enabling the courts to award damages for privacy invasion under a modern statute instead of using their loosely defined powers under Article 8 of the Human Rights Act. The scope of defences to the new tort will be important to the media (and not just to the press): obvious justifications should include the exposure of crime or serious impropriety, the protection of public health and safety, or revelations of hypocrisy. Under the latter test, Naomi Campbell would probably have lost because the Daily Mirror story exposed her lies about not taking drugs. Max Mosley, whose “Nazi sex orgy” turned out to be merely an old-fashioned British sex orgy, might still have won. But whether he had a reasonable expectation of privacy over his multiple spankings should surely have been decided by a jury, and not by a judge sitting alone. Under privacy law as it has developed, there is no place for juries, and only a statute could provide the media with a right to jury trial.
Does the press want trial by jury for privacy cases, or trial by Mr. Justice Eady? The new Defamation Bill severely limits trial by jury for libel, and newspaper groups cannot work out whether they are in favour. Because they abhor the idea of privacy law, they have shown little interest in its formulation, other than to complain about super-injunctions. One solution that will be canvassed before Leveson is to abolish gagging injunctions – to ban all prior restraint – but to allow exemplary or aggravated damages to be awarded by juries if publication of genuinely private material goes ahead. This would be the solution most consonant with free speech: editors could not be stopped from publishing intimate personal details, but by doing so would take the risk of having heavy damages awarded against them if their ‘public interest’ defence failed. They would be allowed to publish and be damned, so long as damnation came after publication, and not before it. This rejection of ‘prior restraint’ would be in keeping with U.S. Supreme Court precedents (notably the ‘Pentagon Papers’ case) and with Blackstone’s celebrated statement of the free-speech principle, now honoured by UK judges in the breach rather than in the observance:
The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints on publications, and not in freedom from censure for criminal matter when published. Every free man has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity.
Post publication damages will not, of course, put the genie back in the bottle. The victim of privacy invasion will never be the same again – his or her (usually his) secret will be out, and money will never compensate for the humiliation. This is true enough, but the courts cannot perform miracles. They cannot be like King Canute, policing the electronic waves of incoming allegations about the names and information that the courts are suppressing. Do we really want Scotland Yard to spend our tax money on a “Twitter squad” arresting those who indulge in Internet speculation about the goings-on in secret courts? A law that made invasion of privacy a civil wrong, with damages of up to (say) £200,000 awarded by a jury, would operate in time as an effective deterrent. Jury verdicts are publicly acceptable, whereas decisions on such subjective moral issues by middle-class and usually male judges, can always be criticized as unrepresentative or “out of touch”. It is not clear whether Max Mosley would have won his case before a jury, (depending, perhaps, on whether they thought him a deplorable lecher, or not bad for his age) but had he done so the verdict would have been much more acceptable. The point is that over time, if juries award heavy damages against tabloid intrusion, tabloids will think twice — or three times — about intruding. They will take care to ensure they have a public interest rationale before they do it again.
The PCC’s phone hacking inquiries
The end of the PCC as a politically credible organization has been hastened by its failed enquiries into phone hacking at News of the World. In 2007, after the convictions of Goodman and Mulcaire, it issued a report which accepted the newspaper’s false claim that Goodman was the only journalist to have engaged in phone hacking. In 2009, the Guardian published evidence that the PCC had been misled: the notorious “for Neville” email, the Taylor cover-up settlement, and a police source which alleged there had been “two or three thousand” victims, (as it turned out, there were four thousand). The PCC rushed back into the fray, with an “inquiry” of such utter naivety that the Guardian’s evidence about the “for Neville” email and the Taylor settlement was dismissed as mere speculation: The practice of phone hacking, it confidently concluded, was ”not undertaken by others beyond Goodman and Mulcaire” and there was “no new evidence to suggest that News of the World executives knew about Goodman and Mulcaire”. The Guardian was rapped over the knuckles for breaching the code of conduct injunction against publishing distorted or misleading information, with a story “that did not live up to its dramatic billing”. This PCC report smugly concluded:
The Commission is satisfied that, as far as it is possible to tell, its work aimed at improving the integrity of undercover journalism has played its part in raising standards in this area. It further underlines the important role that a non-statutory, flexible body such as the PCC has in adding value to the work of the legal system to help eliminate bad practice and it would be regrettable if renewed controversy over the historical transgressions at the News of the World obscured this…the Commission trusts that the value of its work in this area is something that others – notably the Select Committee, which is still examining these matters – will recognize.
These famous last words will haunt the PCC to its grave, notwithstanding that its website reads: “PLEASE NOTE AS OF 06 JULY 2011 THE PCC HAS WITHDRAWN THIS REPORT”. The Guardian story was an excellent example of public interest journalism, which actually underestimated the extent of phone hacking. But because it damaged the reputation of the media, and notably of News International (a substantial source of PCC funding) the Commission conducted a public relations exercise in the guise of an inquiry. Lacking any statutory powers, or any evident sceptical intelligence, it failed to get to a truth that became obvious to the Select Committee in July 2011. The PCC could not resist adding a shamelessly propagandistic conclusion trumpeting the virtues of self-regulation – its bogus claim to have raised standards and eliminated bad practice. The PCC may now consider its report “withdrawn”: but it is likely to become a prime exhibit in Leveson I. The Lord Justice has said that at the heart of the first stage of his enquiry there “may be one simple question: “Who guards the guardians?” – a role which, on the strength of this report, he is unlikely to allocate again to the PCC.
Alternatives to self-regulation: The ASA model
PCC is often contrasted with the Advertising Standards Authority (ASA) which works (up to a point – it has its critics) because its rulings are backed by serious sanctions. Advertisements held to breach the code cannot be published again, by agreement with newspapers, and unless they are removed OFCOM has statutory power to injunct them. The PCC has no sanction, and has not solved the intractable problem that tabloids are entertainment oriented and will continue to publish circulation-building stories irrespective of adverse adjudications. Moreover, the PCC refuses to monitor its code of conduct, whilst the ASA does so and acts against breaches of its code without awaiting complaints. Calcutt pointed out that a monitoring exercise is essential to any Code that purports to regulate intrusions into privacy, as victims will be reluctant to ensure further embarrassment by making a complaint. Where the PCC has done valuable work is in mediating between ‘non celebrity’ complainants and newspaper editors, obtaining acknowledgment of errors, corrections and rights of reply. This role of informal conciliator is certainly useful, but there is no reason why it cannot be replicated by a statutory regulator, – indeed, any complaints body should offer this service. The problem with adopting the ASA model is that it focuses on simple issues of taste and decency, and whether advertisers have evidence to support their claims – questions that a lay panel can readily decide. Journalistic ethics raise questions that often call for enquiries and expert judgment, more suited to an ombudsman.
Beefing up the PCC
The PCC has been a confidence trick that now fails to inspire confidence, and leaders of all parties have pronounced its doom. Before Leveson it will undoubtedly fight its self-regulation corner, begging not to be vouchsafed the statutory powers without which it cannot work effectively. Its most sensible pitch would be to revive the Shawcross proposal and offer to make contractual arrangements whereby newspapers would agree to implement its decisions, including orders for compensation. But its past record, and the fact that it cannot promise to bring all newspapers into its disciplinary fold, are obvious objections to its continuance as a voluntary body. Not only have Northern and Shell withdrawn all its titles, but Private Eye has always refused to join. Ian Hislop, perhaps the country’s most respected editor, has explained that he could not possibly join an organisation influenced by editors whose ethics he despises. Although the PCC now has only seven editors as against ten lay members, the question of the extent to which it should represent the public has faded in importance. Irrespective of the mix, the real issue is whether self-regulation can be countenanced any longer.
Leave it to the law
The purist “first amendment” approach would be to sweep away the failed panoply of regulation, and let journalists and editors remain answerable only to the law. This could be the best solution, so long as the law to which they are answerable includes a privacy statute, although Leveson might add to it statutory prohibitions on chequebook journalism, payment of blood money, and other unethical practices. He could even recommend that the existing PCC Code of Conduct be given statutory force, so that any victim of a breach could sue for damages. Newspapers would need to show a genuine concern for ethics – e.g. by having their own independent ombudsman or “readers representatives”. The PCC might then survive in a different form, to offer arbitration and mediation services to those with a grievance against newspapers which could be settled out of court. There is a need – and Leveson will certainly make some recommendations in this respect – for better training of journalists in ethics, and for a proper discussion of ethical issues in universities and in a UK equivalent to The Columbia Journalism Review. (One reason why U.S. journalism has higher standards, without any statutes or independent regulation, may be that lapses are subject to vigorous criticism in journalism reviews, peer group gatherings and, in the case of the New York Times and The Washington Post, often from the paper’s own ombudspersons.)
One form of true self-regulation that might be canvassed as an alternative to the old Press Council/PCC model, is to forget the whole idea of public representation, and leave the code of conduct to be policed by a respected and experienced journalist/ombudsman whose rulings will carry weight within the industry. This ombudsman model has had a certain degree of success in South Africa, but would not begin to satisfy MP’s or the public in the UK, who seem wedded to the notion of oversight by a body with a majority of lay members. Indeed, the history of self-regulation has been marked by increasing demands for more lay representatives – there are currently 10, against 7 editors, on the P.C.C. They might form a Board, or Trust, to which the ombudsman would account, but the only way that this model could now be ‘sold’ to Leveson would be with Shawcross “contractual powers” to order corrections and compensation. This would face the problem of certain newspapers refusing to opt in voluntarily.
A statutory ombudsman
That leaves the statutory solution. Editors are too ready to characterise statutory solutions as ‘draconian’, or as likely to place the press under the thumb of the government. This special pleading makes no sense, given the statutory regimes that operate in many other European countries to provide speedy and effective rights of reply and corrections of factual errors, without adversely affecting freedom of expression. It is perfectly possible to design a system in which a press ombudsperson entirely independent of government is selected by representatives of the media and of relevant NGO’s like Liberty and consumer groups, and given certain statutory powers to obtain documents and require testimony. This personage would be empowered to award compensation to victims of press malpractice and to order the adjudication to be published with a prominence equivalent to the original story, and to direct that a reasonable-length right of reply should be accorded to complainants who have been identifiably attacked. Most good newspapers and editors will agree to all this in any event, so any Ombudsmanic direction to publish a factual correction or a right of reply can hardly be called an infringement of free speech – it is rather a case of curing an abuse of free speech by the device of ordering more speech. An Ombudsman should never be empowered to order an apology, since a forced apology may not be sincere. (When Richard Ingrams was asked whether he had ever knowingly published falsehoods in Private Eye, he replied “only the apologies”).
A quid pro quo?
There are endless permutations of the ‘statutory ombudsman’ model. A full-time position, with authority and salary of a High Court judge and an office with staff investigators would be one option, with power to order corrections or publications of replies and to award compensation for defamation or privacy invasion. The ‘carrot’ for this ‘stick’ for the press would be relief from court actions for these wrongs – the state would provide that complainants would lose their right to sue for defamation or breach of privacy unless they could show malice. If compensatory damages under the statutory scheme were capped at say £20,000, this might actually be an advantage for newspapers, saved the expense of a long legal action and the danger of damages as high as £200,000 (even higher, if newspapers wish to settle in ways that cover up their misconduct: see the Gordon Taylor case).
Bring back the Press Council – in a statute
The only politician to advance a detailed proposal for a Press Regulator is Jack Straw, in his 2011 Gareth Williams Memorial Lecture. His model looks very much the pre-Calcutt Press Council (he calls it ‘the Press Commission”) with duties to protect free speech as well as to protect individuals from defamation and intrusion. Most of its members would be independent, but would include journalists and editors. It would have statutory power to impose sanctions (of an undefined kind) on a publisher, and “could have the power to find an individual guilty of egregious abuses. It would be a matter for individual publishers to decide if they continue to employ such persons”. One of the obvious problems with Mr. Straw’s proposal – other than the feeding ground it would offer to lawyers – is that an unwieldy body of laypersons, journalists and editors cannot be an effective decision maker in relation to the specific allegations of defamation in breach of privacy with which he expects it to deal.
The PCC, with its portentous statements and declarations, has in the past, always received a good press. It was Lord Wakeham who succeeded in persuading most editors that it was in their interest to support – i.e. not to criticize – the PCC. The suspicion remains that editors and journalists, so quick to find fault with the performance of other public bodies, have turned a blind eye to PCC failings because they have a vested economic and political interest in fostering a public perception – a false public perception – that it is a powerful body and an effective alternative to the courts. Over the years, the failure of investigative journalism to investigate the PCC has been a serious blot on the performance of the press in the UK. Leveson may comment on this omission. This enquiry will range over many issues not covered here (it would be sensible for his inquiry to produce an “issues paper” as soon as possible, so that any others likely to impinge on free speech can be identified).
There will be many regulatory schemes canvassed before Leveson at Stage 1, some with potential dangers to the newsgathering ability of the press, which will need to begin thinking beyond the PCC. As an industry, it has tended to work on the principle of “always keep a hold of nurse, for fear of finding something worse” but this time nurse – in the form of self-regulation – may no longer be an option. (As Straw puts it, “self-regulation is self-serving”). There are four newspaper groups which have been given “core participant” status by Leveson, and they should start putting their heads together, even though two of them (News Limited and The Guardian) have been at loggerheads over phone hacking. What efforts are being made to obtain the views and support of the provincial papers, the magazine publishers, the National Union of Journalists? Whilst “victims” of press intrusion have been given core status by Leveson, it is a bad sign for press freedom that independent bodies dedicated to it – Index and PEN – have been denied the right to appear. They would have spoken for the public interest, and delivered the impartial yet freedom-sensitive case that Leveson needs to hear. It is unclear, at present, who will make it, or whether it will be made at all.