Last Thursday the mind of Lord Justice Leveson was laid bare, on matters of the press at any rate. At nearly 2000 pages Sir Brian’s Inquiry into the culture, practices and ethics of the press (Leveson) is bigger than Tolstoy’s War and Peace, and for some Leveson delineates the state’s invasion of press freedoms.
I have read a lot of the Executive Summary of Leveson and what I understand seems to be a varied odds with many of the commentators in the press. There are so many arguments to bat, I am just going to have to take a tiny handful for this blog, based loosely around the main headings in the Summary of Recommendations. For the avoidance of doubt, and to declare my stance, I am in favour of Leveson.
Regulation, Complaints and Press Freedoms
Leveson recommends “an independent self regulatory body” (p32). The way it is appointed should be fair, open and transparent “without any influence from industry or Government”. Importantly it should not include any member of the Commons or Government, nor any serving editor.
Leveson makes it clear that this is not about controlling the press. Someone tweeted me at the weekend saying, “And when Leveson starts to interfere with the stories/papers …” This seems to be the first line of attack against Leveson. It’s a grade one Straw Man Fallacy that Leveson wants control over what the press says or how it is said. This is a line of argument that comes back over and over again, with no foundation, but it is a type of fallacy that the press are very good at using with regard to other stories, so it’s no surprise to see them rolling it out on this one too.
One of the functions of the independent regulator include making sure the press follow code for standards and requirements for governance.
The code must take into account the importance of freedom of speech, the interests of the public (including the public interest in detecting or exposing crime or serous impropriety, protecting public health and safety and preventing the public from being seriously misled) and the rights of individuals. (p33)
The code must cover a complains procedure, powers, remedies and sanctions for breaching the code, including an arbitration service.
One of the interesting things about this code is that the press themselves get to decide what is in the code, so long as it broadly covers standards of conduct, respect for privacy “where there is no [sic.] sufficient public interest justification” and the need for accuracy – that is, “the need to avoid misrepresentation.”
Misrepresentation isn’t murky, it is quite straight forward. Don’t misrepresent what someone has said just to fit your organ’s tune. On 2nd Dec The Mail ran a story about Shami Chakrabarti, of Liberty International and a key advisor to Lord Leveson, attributing to her the opinion that a ‘Leveson Law’ is illegal. That same morning, she had breakfast with Hugh Grant just before the BBC Andrew Marr show. He tweeted, as @hackedoffhugh:
Had croissants with Shami Chakrabarti at #marr. Her first words were “I was stitched up by Mail this morning, tweet that & pass the coffee”
And look who wrote the article, a ‘deep cover’ Daily Mail writer, David Rose – a pseudonym with an unclear foundation. One thing is clear, if a story needs a ‘fixer’, David Rose is wheeled out. Hot topics include:a viscous character assassination of Child Abuse Victim Steven Messham over the McAlpine story, denial of climate change science (see this Guardian article), and the revelation that the Jersey care home abuse police investigation was based on a fragment of skull which, two weeks in to the investigation, turned out to be just an “old coconut shell”. (There is a theory that David Rose is actually leaving a breadcrumb trail of evidence to follow.) So Shami’s assertion that she “was stitched up” should really come as no surprise.
More on the Daily Mail and press ownership in my next article, Do we have a ‘free press’ to even protect? [Coming soon.]
An effective complaints watchdog
The major part of Leveson’s recommendations are about an effective Press Complaints body, acting as a watchdog and a go-to for people with complaints against the press, papers or articles. It would make judgements about whether to uphold or dismiss complaints based on the code of conduct and the law, and act as arbiter in disputes.
What did Lord Justice Leveson mean when he said, “the press can’t go on marking their own homework”? He was referring to the current process of dealing with regulation and complaints against the press.
The current Press Complaints Commission (PCC) is “an independent self-regulatory body which deals with complaints about the editorial content of newspapers and magazines (and their websites).” It was set up in 1991 as a result of the Calcutt Report (June 1990) which had investigated a number of publications failing to observe what many saw to be the basic ethics of journalism during the 1980s.
The committee of the PCC is made of national and regional editors who produced and keep updated a formal Code of Practice which all editors and publishers were supposed to committee themselves to. Leveson noted that there were few consequences for breaches of the PCCs codes, even following successful litigation (Summary: para 37, p11). He recognised that, “although errors and inaccuracies will always follow in a fast moving and healthy press… there has been significant and reckless disregard for accuracy.” (Para 38, p11)
In an industry that purports to inform, all misinformation should be a matter of concern and distortion far more so. Where that strays into sustained misrepresentation of groups in society, hidden conflicts of interest, and irresponsible science scares, the risk to the public interest is obvious. (Para 38, p11)
All the leaders of the main political parties are in agreement: the PCC has failed and a new body is required. “Mr Cameron described it as “ineffective and lacking in rigour” whilst Mr Miliband called it a “toothless poodle”.” (para 41, p12) Leveson argues that this body has “held itself out as a regulator, … [but] is not a regulator at all.” (para 42, p12) Setting its own rules, with editors deciding how to enforce these rules (often deliberately not enforcing them as well), and there being no mandate for organisations to be part of the PCC.
In practice, the PCC has proved itself to be aligned with the interests of the press, effectively championing its interests on issues such as s12 Human Rights Act 1998 and the penalty for breach of s55 Data Protection Act 1998. (Para 45, p12) It has failed to monitor compliance with the code… (para 46)
Regulation by Law – Statuary Underpinning
This part of Leveson is the most misunderstood and misrepresented of all his proposals. A new body to replace the PCC must be totally independent, but it must have powers to mandate compliance to a Code of Conduct and in respect of complaints and arbitration. Without this, it is simply another PCC, with no consequences and no powers.
The most frequent argument against ‘more Law’ is that ‘there are already enough laws.’ This is one of the major contradictions in the argument against any ‘Leveson Law’. Law already covers what can be printed and how it can be printed. Libel and deformation are two clear examples. Of course, the press will publish and fight for the right to have published, and mount their defences in open court. This is fair, proper and right.
Secondly, the rise in ‘super injunctions’ are of concern to the press too. Under law, a very wealthy individual can take out an injunction which prevents all mention of a story in the press and media. Completely. This exists now, and has been used in a variety of high profile cases during the last 12 months alone.
A further argument against a law is that the activities used by many to get their stories were already illegal too. But this didn’t stop those journalists using these methods. There has been the allegation that the Leveson Inquiry was caused by a failure in the operation of the criminal law, and that if the law (in relation to Mulcaire et. al. 2006) had led to arrests years earlier, the inquiry would not have been needed. But the PCC did not take complaints in to alleged phone hacking seriously, for what are now obvious reasons. Indeed, people have commented that as far back as 2001 they had mentioned to newspapers the ease at which voicemails could be hacked in to. Unsurprisingly the press never reported this or lobbied that phone companies tighten up their act.
Finally, the most powerful argument put forward by those against this part of Leveson is that any law would control the press and hundreds of years of a ‘free press’ would end in a single blow. I have seen plenty of headlines and comments over the weekend which echo with the sentiments of, “There must be no state control of the press!” or similar. Some have made out that they would have to get every story ‘checked’ by the regulator before publication. This is clearly wrong, Leveson clearly states there must be “press freedom” and it must be free from control; the fear mongers are dressing up regulation as censorship. Again, this is clearly a Straw Man Fallacy. Ireland and Denmark have similar arrangements in Law. These same newspapers have signed up to the Law in Eire, the world did not end for them, and they continue to print in a free and open way.
In his statement to Parliament, David Cameron said that a law would be impossible to draft. As far as I can tell, Cameron’s experience of drafting is consigned to his to job as a press PR man and he has no legal experience. In contrast, Lord Leveson is one of the country’s top judges and lawyers. I understand the argument many put forward that lawyers love law, and it is their answer to everything. “We need MORE law!” But in every other regard, it is also Goverment’s answer to everything too usually, so this accusation is a little hypocritical really.
Self regulation, underpinned by legislation
This is the essence of Leveson’s recommendations, and he is very clear on this:
It is worth being clear what this legislation would not do. The legislation would not establish a body to regulate the press: it would be up to the press to come forward with their own body that meets the criteria laid down. The legislation would not give any rights to Parliament, to the Government, or to any regulatory (or other) body to prevent newspapers from publishing any material whatsoever. Nor would it give any rights to these entities to require newspapers to publish any material except insofar as it would require the recognised self-regulatory body to have the power to direct the placement and prominence of corrections and apologies in respect of information found, by that body, to require them. (para 71, p17 emphasis added)
There is no statutory regulation of the press. But he does wish the legislation to achieve three thing:
- Enshrine a legal duty to protect the freedom of the press;
- Provide an independent process to recognise the self-regulatory body, and reassure the public that the basic requirements of independence and effectiveness were met and continue to be met;
- By recognising the new body, it would validate its standards code and the arbitral system sufficient to justify the benefits in law that would flow to those who subscribed.
[Summary, para 72, p 17]
In conclusion, Leveson recommends a law to underpin a regulator, not to control the press. Any law could be very narrow and constrained. It does not even need to mention anything about how the processes work, just that the body that oversees these processes has power and backing to work. In my mind it seems very straight forward, and by no means is anything even resembling state control of the press.
Very importantly, Leveson does not advocate control of the press! They get to choose their own rules and decide how the body will run. Then the law makes sure the body has some teeth. The law will not state in any way what they can’t print. There are laws already that control that, and the press will print anyway and face its day in court.
This is about making sure the press complies with the law, maintains a standard of ethics that can be trusted, and sets up a complaints procedure. This independent body can rule for or against a complaint, but importantly the law won’t dictate how it operates. The law merely ensures that whatever the body decides it has the power to impliment. Like the BBC Trust charter, or OFCOM, but with rules drawn up by the press themselves. In fact, the equivalent legislation in Ireland is just two paragraphs long.
This is a major part of what Leveson is about, and those in favour are justified in their full support of the proposals put forward.
For more information on the Leveson Inquiry or to download the Summary and Reports, please visit: www.levesoninquiry.org.uk
If you agree that Leveson should be implemented in full, the please sigh the petition at: http://hackinginquiry.org/petition or http://epetitions.direct.gov.uk/petitions/42523 for HM Government petition.