Press regulation: Be careful what you wish for
As media standards and sanction are discussed at the Liberal Democrat party conference, John Kampfner warns that distaste at "hackgate" should not be used as an excuse to tame the feral beasts of the free press
18 Sep 11

As media standards and sanction are discussed at the Liberal Democrat party conference, John Kampfner warns that distaste at “hackgate” should not be used as an excuse to tame the feral beasts of the free press

When I took over at Index on Censorship three years ago the issue of freedom of expression was seen in mainstream British society as tangential. That did not apply in the many countries around the world in which we operate, in which free speech is a daily existential battle – places like Burma, Belarus, Russia, China, and most recently in Egypt and Tunisia. In those countries we see the black and white — dictatorships that kill, imprison or otherwise intimidate those trying to exercise this most basic of rights. Yet here, and in other more developed democracies, we often deal with the shades of grey, helping to shed light on some terrible conundrums. We found ourselves, naturally, at the heart of the Wikileaks saga, vigorously supporting the principle of whistleblowing in the public interest, but on condition that sources are not compromised, lives are not endangered. Confidentiality and secrecy. What also about our seemingly unquenchable desire to take offence? Where does sensitivity begin and an exchange of rumbustious views end? And the issues we’re discussing today. Privacy, press standards and libel — the issue on which we’ve led the campaign for reform.

Before going into more detail, at this point it’s usually worth asking audiences one question. It helps concentrate the mind. If you look back over any of the big issues of the past, say, 10 or 20 years — Iraq and weapons of mass destruction, MPs and their expenses, links between corporations, lobbying and political power, the collapse of our banks and the greed and folly of those at the helm, and now hackgate, ask yourself this: did journalists find out too much or too little? Or, more importantly, did the public find out too much or too little? When one talks about a media “out of control”, when Tony Blair famously denounced journalists as “feral beasts”, it is worth bearing in mind that simple question.

Proper journalistic inquiry is extremely difficult in this country. The economics militate against. A forensic team can take months beavering away and then end up with nothing. Editors worry about the response of the bean counters. They want instant returns. Then there are our libel laws. When Index began the libel reform campaign in November 2009, with our colleagues at English PEN and later with the group Sense About Science, few in power recognised the problem. Jack Straw intimated there wasn’t one. By the time of the general election a few months later we had secured manifesto commitments from all three parties. In February, the coalition published its draft bill, which is now in a special committee and we hope will tabled next year as a full bill. It’s by no means perfect but it constitutes a major improvement on the status quo. That status quo is far more chilling than people here realise. We catalogue many cases of doctors, scientists and writers being sued and settling even where they have no reason to — simply out of fear of being ruined financially. Even where people go through to court, and win, they end up out of pocket. Then there is libel tourism –– where oligarchs and others with wealth have used English courts to silence legitimate questions of authors, bloggers, activists, often from their own countries. So awful was the situation that the US Congress last year introduced the Speech Act to protect Americans from British courts. This was described by the Culture and Media select committee last year as a national humiliation.

That remark was contained in its report on libel, privacy and press standards. It bundled those three issues together, and its findings were largely very good. So let us see where all reasonable people agree. There are many areas.

Firstly, on hackgate. The outrageous use of industrial hacking on just about anyone and everyone, whether on a fishing expedition just to see what they might unearth, or to stitch them up because they had the temerity to question those tabloids’ actions is reprehensible. It is good that the Leveson inquiry is looking into learning from the lessons of the specifics of the case, and seeking to draw broader conclusions for the media. We are working with him, as are many organisations. As for the police, it is important that the investigations dig deep and that prosecutions ensue. It is important though that the Met, which has brought itself into disrepute with its lamentable behaviour throughout this affair, remembers to distinguish between those who have done the hard work –– for it and for society –– and the perpetrators of crime. That’s why the suggestion of an Official Secrets Case against the Guardian is so incredible and outrageous. Beware, though. In a culture where journalism is seen as a nuisance, these things tend to happen.

Second, it is laughable that any editor could plead ignorance of a sensitive piece of investigation. The lines of accountability must be transparent and clear.

Third, on press standards, everyone accepts that the PCC is failing. Something must be done. The question is what. Self regulation must work and be seen to work. It must, to use that cliché, have teeth. It currently does not, and the PCC struggles for credibility. The principle is far more important than the name, personnel or structure of an organisation.

Fourth, on privacy, I think everyone agrees on the two polar opposites. Prime Minister in bed with Russian spy? Moral majoritarian giving sermons about fidelity being caught unfaithful? Hypocrisy is the easy part.

How about these? Banker in bed with senior member of staff? Internal disciplinary procedures, perhaps. But public interest? Was this going on as the bank was effectively going under, forcing the government to spend billions of taxpayers money to bail it out. Is there a causal link? Should the journalist establish that causal link, and if so, to what degree of provability?
Footballer playing away? Surely no interest, even if he is a role model. What about an England captain? Probably not again. That same captain who trades, in commercial adverts, on his credentials as a family man. See the problem? What about the celebrity who, through his or her agent, feeds the newspapers or Hello magazine, with positive stories about their private life. Exclusive and lucrative pictures of their wedding perhaps? What happens when that marriage then goes wrong? It’s public when all is going well. Then private when not. Double standards?

These are incredibly difficult arguments. Article ten versus article eight. The French approach to privacy, as exemplified in the Princess Caroline case, and now increasingly cited here in our case law by judges, is that everything is pretty much private unless deemed public. Of course it must be unpleasant to be photographed just walking down the road to get your newspaper. In France, the opposite now prevails. It’s extremely difficult for TV to do a package on the weather, say, for fear that anyone who can identify themselves as lying on the beach where they’re filming can sue for invasions.

Ultimately, so much of this comes down to public interest. We all struggle to define it. Self evidently it is much more nuanced that simply what the public is interested in. Privacy is cited in many continental Europeans to prevent legitimate investigation into financial matters. Is that what we want? I think we certainly agree that the status quo doesn’t work, but we struggle to map out the parameters. This is where Leveson and other inquiries and debates will help.

What about the methods? Impersonation, secret filming, secret recording, even listening to phones. Are they all wrong? Again, the answer lies in the context. All of the above are underhand, dangerous and potentially illegal. To do it out of prurience or spite is unforgivable. To do it lightly is cavalier. But what happens if you have a strong inkling that someone is selling arms, people trafficking, siphoning money out of bank or business. We’re not surely saying ban these methods. If you do, you get rid of investigative journalism, you remove important checks and balances, you open the way to ever more corruption and malfeasance. Again it comes down to the public interest.

Finally, I’ll leave you with this. It was a piece written by David McKie, then the assistant editor of the Guardian, in the Index on Censorship magazine, in July 1990. McKie cited a number of speeches from MPs debating legislation aimed at bringing the press to heel. One speech in particular caught his eye.

“There is a cancer gnawing at the heart of the British press. At the lower end of the tabloid market, journalism has been replaced by voyeurism. The reporters’ profession has been infiltrated by a seedy stream of rent boys, pimps, bimbos, spurned lovers, smear artists bearing grudges, prostitutes and perjurers. That is the force that makes constituents say to members of parliament: ‘get on and do something about it’.”

Who was the MP? Any guesses? That was the Jonathan Aitken, who of course tried to silence the press when it investigated his corruption.

Everyone agrees that something must be done. Illegality must be dealt with, but I hope I have given some pause for thought about how. We can try as hard as we might – and we should – and we can and will improve matters. But we will never find a press that is perfect. It does not exist. It is the first draft. It is rough and ready. It gets things wrong. I would rather that than one that is excessively pliant. We should be careful what we wish for.

John Kampfner is chief executive of Index on Censorship. A version of this speech was delivered at the Liberal Democrat conference in Birmingham on 18 September