Don't tame the feral beasts
John Kampfner says that the News of the World hacking scandal won't do as much damage to journalism as English libel law does.
09 Jul 09

The news could not have come at a worse time for free speech campaigners. Revelations about private detectives have been paid large sums by the tabloid press to hack into the mobile phones and other records of public figures will cause damage to the newspaper at the heart of the practice, the News of the World. It will not enhance the credibility of its former Editor, Andy Coulson, now David Cameron’s trusted Director of Communications at the Conservative Party.

But the consequences are far more important than the future of a tabloid and a spin doctor. The scandal — for it is a scandal –– has unleashed a further bout of yelping from the “something must be done” brigade, the people in public life who argue that the media has long been “out of control”. Their cheerleader is Tony Blair, who famously used one of his last days as prime minister to take revenge on journalists, deriding them as “feral beasts”.

The painful truth is that, in one respect, these people are not wrong. British journalism contains no shortage of sleazy practice. And yet the context is entirely misleading. The biggest problem with the Fourth Estate is not that it finds out too much, but that it finds out too little. Investigative journalism is a declining art. Much of that is due to economics. It costs a considerable amount to deploy a team to eke out information about, say, a dodgy arms deal, unethical corporate practice, or British collusion in torture. Sometimes months of probing leads to nothing, and editors are under pressure to account for every penny they spend. Some of the decline is attributed to simply laziness. It takes a lot of effort to commission and see through difficult stories.

But the main impediment comes from Britain’s horrific libel laws. So skewed is the legislation and the practice that the burden of proof in court falls entirely on the media, rather than the plaintiff. The costs have grown beyond all proportion and are entirely out of sync with the original “offence”. This has led to malicious threats of prosecutions by the rich and famous, forcing newspapers to retract, even where they know the information to be correct, simply because they cannot afford to sustain their defence.

Britain has now become the libel capital of the world, the home of what has come to be known as “libel tourism”, the destination of choice for Russian oligarchs and others to prosecute not just journalists, but book authors, even NGOs. The chilling effect is hard to quantify, because beyond the prosecutions and threats lies the self censorship that is affecting so much journalism at the moment. The new mantra, from the BBC to most newspapers, even now to some bloggers, is: “why cause trouble?”

The House of Commons Select Committee on Culture, Media and Sport is putting the finishing to an enquiry it has been carrying out on “press standards, privacy and libel”—note the order. At Index on Censorship, in conjunction with English PEN, we have been conducting our own inquiry into the impact of libel. We have spoken to editors, lawyers, journalists, publishers, bloggers and NGOs in a unified campaign for changes in the libel law. We intend to issue our report in coming months as the government ponders its response to the Select Committee. We urge those preparing their conclusions to distinguish between robust investigative journalism that seeks to find out what the powerful would rather conceal from us and grubby and often illegal practice.

If they fail to make this distinction, if they tarnish us with the same brush, democracy and free expression will be the losers.