Within Europe, British newspapers have fought hard to be free. In the early 19th Century, Napoleon -- unable to trust his own newspapers, used as propaganda pieces, to provide him with accurate news -- was forced to read the British newspapers to find out the latest news of his war with the British. The Duke of Wellington, upon discovering this, pressured the British press to withhold certain information. In an extraordinary, early illustration of press freedom, the newspapers refused to comply. While Napoleon's newspapers were dictated to by the regime, British newspapers poured scorn on their own government. In 1662, when Parliament decreed that newspapers must be licensed in order to print, oppressive libel laws were used to silence criticism of those with wealth and power. Despite the best efforts of the establishment, newspapers obstinately continued printing. In 1863, the licensing laws were repealed. Who is the regulator to decide what is in the public interest?
One hundred and fifty years later, Lord Judge Leveson has proposed a radical reform that threatens to return us to an age of government-licensed expression. The free press has developed as one of the underlying principles of the unwritten British constitution. Edmund Burke said there were, "Three Estates in Parliament; but, in the Reporters' Gallery yonder, there sat a Fourth Estate more important far than they all." Leveson's review threatens the separation of powers that helps to guarantee our freedoms.
At the end of November, Lord Justice Leveson presented to the British Parliament his findings and recommendations over the "culture, practises and ethics of the Press." On the order of Prime Minister David Cameron, the public judge-led inquiry was established, in the wake of the revelations that a small number of newspapers were responsible for hacking the phones of celebrities and the families of missing persons. The inquiry was also responsible for examining the relationships maintained by the press with police officers and politicians. The criminal activity of a few journalists became the basis for a 16-month investigation with a vastly broad scope into the moral practises of the very press that had previously exposed the moral failings of the political establishment that ordered the inquiry.
The inquiry has proposed an independent regulator, with the power to give victims of press intrusion easily obtained redress. This independent regulator would be set up by the media industry itself, which would appoint an "appointments panel," following the criteria laid down by a Parliamentary statute. The panel would itself appoint a board of trustees to run the 'independent' regulator. But the independent regulator would have to be monitored by a "backstop" regulator, which would "validate" the activities of the independent regulator.
Leveson has suggested the backstop regulator could be OFCOM, the broadcasting watchdog, another statutory body which reports to the Culture Secretary. Newspapers who sign up to the arbitration scheme would settle disputes through the independent regulator, with a body such as OFCOM having the final say. The head of OFCOM is, in fact, appointed by the Secretary of State for Culture and Media. What happens if OFCOM finds that the independent regulator is not doing its job properly according to the rules laid down by law is not clear -- but the potential for government to step in at that stage is obvious.
The idea of an "independent self-regulatory" body that has a statutory underpinning but can still "guarantee media freedom" is nonsensical. Either there is free expression or there is not. Further, regulation is either self-enforced by the industry or it is independent of the industry – it cannot be both.
The phone-hacking scandals, the original catalyst for the inquiry, have, in the end, comprised just a small part of Leveson's investigation. Scrutiny of the relationships managed by the press with politicians and police is all well and good, but why should instances of the press's inquiry into corrupt officials lead to restrictions legislated and monitored by the very system that bred such corruption in the first place? The real problem is the politicians' desire for popularity and exposure, as well as the corruption within the police -- problems far more alarming than the methods that might be used by the press to gather stories. After all, it is the job of the press to obtain information. Real moral culpability lies with self-regarding politicians and corrupt police officers.
Among the newspapers, the response to Leveson's proposals has been mixed. While a number of newspapers agree that better self-regulation, or even a truly independent watchdog, can be established, a statutory underpinning is considered alarming. The Times editorial concluded, "The press, not Parliament, must act." Lord Black, the ex-director of the Press Complaints Commission, had previously put together a proposal for a self-regulatory body that satisfies many of Lord Leveson's requirements, but which Leveson has rejected out-of-hand.
By suggesting we put the foxes in charge of the hen house, Leveson's recommendations will destroy one of the key checks on government. He is proposing the destruction of the fourth estate – the unchecked ability to scrutinize and criticize those we entrust with power. Although Leveson chooses to dress up his proposals for an "independent" regulatory body, his model would provide government with the mechanism for censorship.
Leveson seems convinced that his proposals do not amount to state regulation. Yet by providing the power of final say to a statutory-backed regulator such as OFCOM, whose director is appointed by the Culture Secretary, the trail of breadcrumbs clearly leads to the door of Parliament.
Leveson is proposing a mechanism for control of the press that seems similar to the days of licensing of the press. Of course, the professions – doctors and lawyers -- have statutory structures to back up their self-regulation. But journalists are not doctors or lawyers; they represent one of the pillars of the great, unwritten British constitution. Leveson's proposals will, in effect, destroy the separation of powers that has until now existed between Parliament and the Press.
Leveson himself admits the potential for misuse. Addressing his critics in advance, as part of a concurrent proposal for a "guarantee of media freedom," Leveson argues that it could only be lawful for the state to interfere with the activities of the media "insofar as it is for a legitimate purpose and is necessary in a democratic society having full regard to the importance of media freedom in a democracy." Thus the "guarantee of media freedom" contains its own contradiction. Leveson simply admits that he gives no such guarantee. In reality, the only guarantee that freedom needs is for the state to stay well out of the way. Leveson's statute, however, provides an easy mechanism for interference. A simple future amendment could easily destroy the free press completely.
As always, the devil is in the details. Perhaps the most worrying part of the judge's proposals is the suggestion that the new regulator must consider the appeals of "third-party groups." In other words, pressure groups might be able to influence the stance that newspapers take on a particular issue by appealing to the statutory regulator. Andrew Gilligan, a journalist for the Daily Telegraph has noted that one contributor during the course of the Leveson inquiry was iEngage, an Islamist group which has consistently defended fundamentalist anti-Semitic organizations such as the Islamic Forum of Europe, a branch of the Bangladeshi terror group Jamaat-e-Islami. iEngage has demanded that the media must stop its "Islamophobic" reporting of the Muslim community. In reality, iEngage is seeking to use the new regulatory body to silence critics of Islamism, including anti-Islamist Muslims. Leveson argues that these "representative bodies are likely to be far better placed to monitor, and complain about, inaccuracies." Do we really want politicized groups such as iEngage to dictate the sensitivities of others to the press?
A newspaper's freedom to take a partisan approach is one of the most important examples of press freedom. The public does not expect the same standards from every paper. Nor does it expect a balanced view. This is what makes the press free. This is what provides British newspapers with the colour, variation and ability to effect real change. Editors will become fearful of providing platforms for differing points of view. Even if the proposed regulatory body is adopted and turns out to be generally benign, oversight by box-ticking bureaucrats will still have its inevitable inhibitive effect, and the consequent self-censorship of the press can only ultimately harm the public interest.
There are some disturbing signs that Lord Leveson, who is not a media law expert, does not really understand the industry and how it works. The Data Protection Act of 1998, for example, provides an exemption for journalists so that they can investigate and accumulate information about individuals when the story is in the public interest. Otherwise, merely acquiring personal data would break the law. Leveson wants this all scrapped, and has said that the exemption should only be considered lawful if the story is ultimately published. This is clearly unworkable. By deterring journalists from gathering and keeping information which might be important in the future, journalism becomes impossible.
The judge has not really taken into account the existing weight of civil and criminal law. Why useful purpose is there in adding yet another layer of statutory law? If the aim was to punish the criminal phone-hackers at tabloids such as the News of the World, then criminal law is already in place for that. There is a general agreement that the current form of industry self-regulation, through the Press Complaints Commission, has been largely ineffective. But that does not of itself invalidate the principle of self-regulation.
The inquiry into the ethics of the press is not a result of public outrage, as suggested by many Britons; rather, it is the vengeance of the political classes. The chief targets of the Leveson inquiry were the newspapers owned by Rupert Murdoch. Murdoch is a favourite target of people who believe he is responsible for keeping politically unsuitable governments in power. In a recent interview with the Total Politics website, Labour peer Lord Snape claimed that Rupert Murdoch has "done more damage to democracy around the world than any dictator or general in my lifetime." A few years ago, however, the Sunday Times, owned by Murdoch, reported that Lord Snape agreed to accept money from undercover journalists posing as business lobbyists in return for amending legislation.
Leveson's proposals -- even before any changes to the law -- already seem to be a harbinger of state interference. Earlier this month, reporters established that Maria Miller, the British Culture Secretary, had her parents living in her taxpayer-funded second home. Upon contacting Miller's office for comment, the reporters were reminded to consider the minister's role in implementing the Leveson Report. It is also the Culture Secretary who is tasked with appointing the chairman of OFCOM -- the body proposed by Leveson to become the "backstop" regulator.
In 2009, the press revealed that politicians were lavishly spending taxpayers' money in vast quantities, sometimes fraudulently, and with no real accountability. The fallout from this expenses scandal led to resignations, imprisonments and a new wave of scorn for those whom the public elects to manage their own taxes. Those who support greater restrictions on the press have some uncomfortable bedfellows. Tom Watson, for example, a Labour MP who was a furious critic of Murdoch-owned newspapers, was frequently to be found over the past year in Parliamentary committee rooms and television studios condemning the press for its putative corruption and immoral practices. Yet the same Tom Watson, only a few years before, was revealed by the Daily Telegraph to have spent £100,000 of taxpayers' money refurbishing his London flat. Only a few weeks ago it also emerged that Watson, with taxpayers' money, was renting two rooms from an official in one of Britain's biggest trade unions. In working to expose such stories of the excesses of those in power, do we really want newspapers such as the Daily Telegraph to be ultimately dependent on people such as Watson?
There remains a suspicion that a part of the outrage has come about as a result of celebrities complaining that they wanted to be famous only for "good" reasons and not "bad" ones. So it is not necessarily publicity they want to control, just negative publicity. There were, to be fair, some disgraceful instances of illegal acts by individual journalists, but even before Leveson had presented any of his findings, the press already started to regulate itself for the better. The tabloid press has avoided much of the celebrity kiss-and-tell stories that were their staple. The tabloids recently refused to publish the paparazzi pictures of a topless Duchess of Cambridge.
One media lawyer noted: "The view in some quarters is that Leveson is nowhere near as bad as it could have been and the press can surely live with it. Maybe so, but any kind of regulation of free speech, however light, tends to clog the arteries of an open society. For instance, data protection legislation, almost overnight, stopped the kind of easy conversation that local crime reporters used to have with the police and which enabled them to obtain background briefings about crime in their area. Police now run scared of privacy claims and the result is that less information flows."
What was the Leveson inquiry truly about? Certainly, the payments made to police and the close relationships developed with politicians should not lead us to condemn the press, but rather the corruption within government and particular public bodies. With the taint of Napoleonic code, Leveson's report suggests we must prescribe to the press exactly how it should behave, rather than rely on the law to punish illegality or upon the civil courts to provide fitting restitution. If phone hacking were the real crime, then new legislation can do nothing more to prevent a practise that was already illegal. Government can punish illegal behaviour, but it must not prescribe how the press behaves and thinks.
Who guards the guards? That is what courts are for: they exist to settle disputes and hold misbehaviour accountable. There are already some reforms in the pipeline: it will become easier and cheaper for both a claimant and a defendant to bring about a speedier resolution of actions concerning privacy and defamation. At present, a defamation claim can be so ruinously expensive that even if you win, you lose.
There is a strong principle in libel law that if one publishes a story and is prepared to defend it, then the law will not intervene before publication, although you must be prepared to take the consequences – in other words: "publish and be damned." In line with the original declared purpose of the Leveson inquiry, if the proposed regulation is supposed to stop things before they happen, then we are now talking about pre-publication control.
Leveson wants the regulator to offer a pre-publication vetting service, to allow an editor to check if his story is in line with the approved public interest. Not only will such measures lead to suffocating levels of bureaucracy, but they resurrect the image of the state censor. Freedom of expression should mean we can write whatever we like, within the law. Who is the regulator to decide what is in the public interest? What if OFCOM disagrees with the editor's view? The greatest threat of tyranny does not come from demagoguery in the street. In reality, the drift to tyranny is the bureaucrat with the pen.
Within Leveson's enormous 2000 page report, he assigned one page to the Internet, in which he described it as an "unethical vacuum," and claimed it as too impractical to regulate. In an age where newspapers are increasingly moving to internet-based platforms, and in which newspapers run blogs with enormous followings that do not appear in printed editions, Leveson's report seems immediately out of date.
Leveson himself admits that "the burgeoning of the internet is likely to render irrelevant much of the work of the Inquiry." The real privacy intrusion, which politicians decry as the free press's shame, is found in the social media. Last month, Lord McAlpine was falsely named by hundreds of Twitter users as the person responsible for a string of child abuse offences in Wales. It is within the tumult of the Internet that such untruthful and immoral practises appear and thrive.
Economically, printed newspapers are already facing huge challenges: they suffer from an ever-decreasing readership and face the difficulty of making money in the digital age. Leveson's proposals will make it even harder for the press to function. Printed papers will die more quickly. At the same time, the unregulated Internet and all its abuses will continue uncontrollably -- but Leveson would have newspapers fight with one hand tied.
As a result of an inquiry whose scope was too broad, and after hundreds of years of press freedom, the independence of British newspapers is now at risk, and by failing to properly examine the remarkable freedom of expression facilitated by the Internet, the Leveson inquiry is immediately out of date. The mistake was to ask Lord Leveson in the first place. If you ask a lawyer for a solution to a problem, he will provide you with a legal solution. What else could one expect?
The press can, of course, be objectionable. Journalists have broken the law and editors have covered up immoral practises. Paparazzi have hounded celebrities, editors have forced the hand of politicians, innocent people have been defamed, irrelevant stories have been sensationalized and prejudices have been spread. But those who break the law must face the courts, and those who libel others must accept the consequences. We tamper with press freedoms at our peril. Britain is colourful, successful and free in good part because of its newspapers. Whether or not Leveson and the politicians who encourage him are well intentioned, a regulatory body which ultimately answers to Parliament creates a mechanism that will bureaucratically erode free expression.