Lord Justice Leveson has one of the least enviable jobs in public life. His assignment is to adjudicate between the demand for privacy and the principle of free speech. He must do so against the backdrop of a public outcry, an unfinished criminal investigation and a galloping technological revolution.
He has taken evidence from comedians making serious points and some serious people behaving like comedians. He has heard many different arguments. Today, the inquiry is hearing from The Times. This seems the appropriate moment to make clear to our readers the newspaper’s view on the future of the press.
We make two points above all. The first is that we believe in the freedom of the press and argue that preserving this freedom requires resisting any form of statutory regulation. The second is a more ambitious, optimistic argument. The report of the Leveson inquiry, for all the inauspicious circumstances of its establishment, can prove to be a positive moment, one where Britain gains both a better and a freer press.
It can ensure that newspapers treat people better; it should take a firm view on questions such as prior notification, the publication of corrections and the independent oversight of the press. It must also ensure that the pursuit of stories in the public interest is more robustly protected, with a clear defence that applies to all the laws that govern information gathering.
The phone-hacking scandal
The phone-hacking scandal has exposed a number of unpleasant truths about the press. It appears that the News of the World routinely used illegal means to unearth stories of questionable, if any, public interest.
As the evidence of wrongdoing came to light, News International, Rupert Murdoch’s company that also owns The Times, was unable or unwilling to police itself. This was a disgrace.
It was, of course, the press that put Fleet Street in the dock. The dogged investigative reporting that unearthed the phone-hacking scandal deserves respect, even if the story was exaggerated and key details misreported. The Leveson inquiry was a necessary response to the public indignation over the phone-hacking scandal and the broader concerns about privacy and the power of the press.
Freedom of speech
The starting point of The Times is that liberty is guaranteed by freedom of speech. A free press and a people free to express themselves are the best checks on the behaviour of the rich and the powerful. The value of journalism is to tell many people what few people know. The public has more to fear from secrecy than to gain from privacy. A muffled press does not make for a quieter world, but for a cacophony of rumour.
This newspaper is therefore an unrelenting advocate of press freedom. It is an implacable opponent of government oversight — direct or indirect — of the press. Journalists should question politicians, not answer to them. There should be no price for critical coverage, no prize for currying favour. The Times never wants its journalists to walk into Downing Street, or any other government office, thinking that it would be prudent to stay on the right side of the minister.
This translates into a deep-seated opposition to any form of state regulation of the press. If any future regulator is run, overseen, empowered or appointed by government, then politicians will loom over the press.
A statutory backstop to independent regulation would either be meaningless or it would mean government regulation. And even a rewriting of the regulatory system recognised by an Act of Parliament has its dangers: a Leveson Act would give Westminster a mechanism for legal control over the press. If MPs decide they do not like the press they are getting, they could easily amend the Act. It gives politicians a foot in the door.
There is another, more practical reason to avoid state regulation. The ground is shifting. So much news is not published by newspapers, but put out on the web by people who are free, unregulated and largely beyond the reach of the law.
The obvious danger for Lord Justice Leveson is that he tackles the printing press, just as its power is waning, but skirts the issue of the internet. This could further disadvantage professional newsrooms: newspapers may well have a smaller readership than a blog, a tweet or a Facebook page, but still have to cross a higher threshold to publish. It would also make the whole exercise of the Leveson inquiry redundant — like issuing a road safety manual for the horse and carriage the same year that Henry Ford brings out the Model T.
The public and the press
That said, it is clearly time for a meaningful intervention rebalancing the relationship between the public and the press. There needs to be a new set of rules put in place to ensure that newspapers treat people better.
People who are misrepresented or mistreated by newspapers deserve quick and easy access to a meaningful form of redress. Corrections should be in a regular, prominent place. Editors should be willing to remedy a substantial mistake on the front page by at least flagging a correction on the front page. And it would be helpful if the regulator posted newspaper corrections on its website and circulated them to all editors and newsdesks.
Newspapers should contact the person or institution that they are writing about before the story runs. This is for reasons of decency — it is better to tell something unpleasant to someone’s face than go behind their back; it is for reasons of accuracy — you want to know their side of the story; and it is for reasons of fairness — it gives them a chance to inform friends, family and colleagues of negative coverage to come.
Editors must be able to justify intrusions into any individual’s private life made without prior notification. Such notification should be considered best practice, rather than be made obligatory. This is not just because obligation might produce a surge in attempted injunctions. It might also make it impossible to publish: for instance, the subject of the story could switch their phone off, meaning the journalist cannot notify them and the paper cannot publish.
A new set of rules requires a new guardian of the rules. The regulator of the press needs to have the confidence of the public. And this simply does not exist at the moment.
There has to be a major change. We propose a move from self-regulation to independent regulation. Journalists cannot go on marking their own homework. News organisations can no longer set the rules of the regulator or appoint the people on it. Their only role must be to pay for it, and to respect its judgment.
The new regulator needs to be more than just a clearing house for complaints: it needs to have investigative and punitive powers too. This means launching inquiries where there is credible third- party evidence of wrongdoing. Where the regulator’s findings suggest illegal behaviour, it should refer the news organisation to the police or any other relevant statutory powers. And punitive powers mean the power to fine.
The new regulatory system needs to sound in the pocket of proprietors. There are several ways that this could happen, each of which needs to be explored: regulated newsrooms could be guaranteed zero-rated VAT on their products, both in print and in digital; they could sign a commercial contract binding themselves into the new arrangement; or the advertising industry, which itself boasts the Advertising Standards Authority, could be persuaded to agree to a reciprocal arrangement in which publishers and advertisers support each other’s codes and regulators. The link with advertising, crucially, would apply to internet sites seeking to make money.
There could be other incentives worth exploring. The new regulator might provide a mechanism to resolve disputes on issues in libel law, as well as privacy. This could provide easy access to quick remedies and, for all sides, cheaper justice.
The public interest
These measures, for all their advantages, carry a danger that Lord Justice Leveson will wish to avoid. They could produce a chilling effect on press freedom, empowering only the company with bottomless pockets and the rich individual with a limitless appetite for complaints. So it is important that the inquiry also provide a robust defence for reporting in the public interest.
In the absence of a First Amendment — the part of the US Constitution that forbids Congress from abridging freedom of the press — the principle of being able to report and comment has a great tradition in Britain but little legal protection.
Journalists have undermined their own case by failing, very often, even to attempt to make the public interest case for the stories that they publish. Lord Justice Leveson has every right to insist that in future they do.
It will always be a matter of judgment whether, say, Sir Fred Goodwin’s affair with someone who worked for him at RBS was an important story about his conduct as a chief executive or nobody’s business but his, hers and his family’s. An editor must make that judgment and be able to defend it, if necessary, to a regulator or a court, balancing the power and influence of the individual concerned against the level of intrusion and the methods used.
It is essential that the press be given greater power to safeguard freedom of expression through a more widely enforceable public interest defence. The public interest does not simply mean interesting to the public, but something in which the public has an interest, something in which the public has a stake. Journalists should be able to make a public interest defence when they report criminal activity or threats to national and local security; when they try to expose corruption, dishonesty, hypocrisy and ethical wrongdoing; when they reveal the true behaviour of organisations, institutions and individuals of power and influence; and when they enable the public to make more informed decisions about their lives.
Lord Justice Leveson must see that this public interest defence applies to all laws that affect information gathering. As things stand, there is a public interest defence to blagging, but not hacking; to privacy infringements, but not bribery.
Looking back over the past decade, it is clear that the biggest failing of the press has been to tell its readers too little, not too much. In examining the alleged threat posed by Iraq in the run-up to war, in reporting the calamitous risks taken by banks before the financial crisis and in understanding the dysfunction at the heart of British government for much of the decade, newspapers did not delve nearly deeply enough. The greatest danger today is that the phone-hacking scandal results in a new set of rules that misses the bigger point. The public deserve to know more, not less.
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