Comment: Editors are as dangerous to a free press as state regulation
For weeks, the press has been conducting a frenzied, hysterical campaign against statutory legislation, on the assumption Lord Justice Leveson will back it when he publishes his report this Thursday.
The prophecies of Britain adopting the media standards of Saudi Arabia are laughably over-excited, but they're right to consider statutory legislation as a dangerous and regressive step. What has been missing from the argument is the observation that editors, proprietors and senior industry figures make less-than-ideal cheerleaders for a free press.
These are the same editors and proprietors who specifically excluded working journalists from serving on the (useless) former industry watchdog, the Press Complaints Commission (PCC). Even Lord Black's proposal for a beefed-up new self-regulating body follows the same model: no working journalists, just bosses and owners. When they say free speech, they mean their free speech.
The editors who worked on the PCC consistently refused calls for recognition of the National Union of Journalists' (NUJ) code of conduct – a best practice document first published in 1936 after calls for journalists to be registered.
They also rejected the insertion of a conscience clause in journalists' contracts, so they can stand up on principle of journalistic ethics when being forced to write something they believe is unethical without the fear (or – more likely – certainty) of getting sacked. Once he was under cross-examination at Leveson, even Rupert Murdoch accepted this was a good idea.
Instead, the 'press', which is shorthand for the bosses, managers, editors and proprietors of the press, is putting its weight behind Lord Black's proposals. The plans should be lauded for including tougher investigations and sanctions and for their inclusion of a commitment to the enforcement of standards. But behind that veneer is the same old story of an embattled industry trying to preserve its special privileges. Senior industry figures would still appoint the members of key committees, including three out of seven on a trust board with the power to veto its chairman. Some have even called for the body to issue press cards, opening up the possibility of editors removing them at will. It's these sorts of proposals which make you realise how thin and self-serving the proclamations of defence for a free press really are.
They're right about one thing though. Statutory legislation is not the answer to phone-hacking or the various failures of British media. While the warnings of a state-control coup come Thursday are too dramatic to be taken seriously, a watchdog with a statutory footing would be a much easier target for a future authoritarian government than the thousands of print and digital publications which currently operate without central control.
Furthermore, by embedding best practise in law the plans will eventually become a register of journalists. It won't start like that. It will start by applying only to newspapers. But with the printed press in decline and the digital press ascendant, it is only a matter of time before it applies to all journalists. Without having signed up to a governing body, a lowly blogger – even someone on Twitter – will be subject to a code of conduct, which would almost certainly be difficult to fulfil without greater financial revenue. The anarchic egalitarianism of the internet and digital technology would be stifled and the state would have the ball in its court. The fundamental principle must remain that anyone who can get published is automatically a journalist.
What would a regulatory system look like if it was free of proprietors and editors on the one hand and the state on the other?
It would be self-regulating, but composed of at least 51% journalists, selected by secret ballot for set non-renewable terms from membership organisations. The other people on the panels would be from various industries and groups – such as established religions, barristers, scientists and historians. The key importance of having over half the panels composed of journalists is to provide a sympathetic hearing for public interest defence cases. It is impossibleto define the public interest. In practice, it is a value judgement one can only arrive on a case-by-case basis. The best court for the assessment of its use is of journalists working with others members of society.
In order to avoid the Richard Desmond problem of large publishers unilaterally leaving the system, the body would need to be able to offer quick fixes, including lower penalties and legal defences to those participating. This would involve an arbitral arm – an idea Leveson seemed tempted by during the inquiry. That would probably require a tolerably small measure of statutory underpinning.
The regulator would be funded by a levy on media firms over a certain size (probably around the £5 million mark). Again, this would require statute. This method of funding protects blogs, online publications and many regional papers from further financial strain while encouraging their participation, while not imposing any further requirements on the taxpayer. It's particularly important to restrict demands on the regional press. We can't afford to burden it with more financial costs. Inadequate or non-existent coverage of local activities is a greater threat to the public good than the excesses of the tabloids.
Importantly, the rules on media ownership should become extremely restrictive. Proprietors should be limited to one printed publication or broadcaster by law. The misbehaviour revealed during Leveson – including privacy, confidentiality of communications and harassment – was already against the law. The problem was how such lawbreaking came to be protected from scrutiny. It was News International's ability to function as a mini-state within Britain which prompted police to give it a free rein. This is intolerable to the legal and cultural standards of a civilised country.
Most importantly, the creation of the regulator should be accompanied by libel reform which goes even further than that currently working its way through parliament. Jimmy Savile's name was not reported throughout his lifetime not because of failures of regulation, but because of Britain's archaic libel laws. They are a greater threat to freedom of speech than statutory regulation. They explain why the rich – bankers, executives in the financial sector, misbehaving high-profile figures in industry and entertainment – escape scrutiny.
How likely are we to see any of this? Highly unlikely. British politics has an unfortunate habit of dividing along the lines of the private sector versus the state. The debate on media standards follows the same logic. Those who are wary of state action are ignorant of the dangers of a privately-owned press. Those who want state action appear wilfully blind to its implications. An effective regulatory system would limit the power of both.
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