Statutory regulation of the press will hurt free speech

This article was originally published in The New Statesman

Between the Leveson Inquiry and the crisis at the BBC, it seems journalism is all we ever read or hear about these days.

These crises are heightened because journalists are, essentially, gossips who like talking about journalists. In this, we’re no different from people in any other line of work: programmers talk about other people’s code, plumbers slag rivals’ work – it’s human.

Note I wrote “line of work” rather than profession. That’s because it is very, very important to remember that journalism is not and cannot ever be a profession.

This is at the very heart of the debate over what Lord Justice Leveson should conclude from his findings when he reports in the coming weeks. Can you legally force journalists to behave in a certain way without damaging free expression?

Some point to regulatory bodies such as the Law Society or the General Medical Council, and say that regulation does not affect those professions. But think. One can strike off a doctor or a lawyer – how does one strike off a journalist? Sure, you can sack her, but what if she starts a blog? Starts making phone calls? Starts covering stories?

How do you stop people doing journalism? The old distinction will become ever more blurred as we all now carry publishing apparatus in our pocket. Journalists in the traditional sense had desks, telephones, expense accounts and bad habits. But most importantly, access to a printing press and means of distribution. A decent smartphone carries all this in one (apart from the expenses and habits).

Journalism is one way in which people can exercise their right to free expression, and the danger with statutory regulation is that one can actually create separate levels of access to a right – giving the journalist less of a right to free expression than anyone else. That’s not how rights work.

Some will point out that there are many “statutes” that apply to journalists, and this is true, but these statutes – contempt, libel etc, do not apply just to journalists – they are universal.

Creating a new law governing the press compromises that universality.

Many point to the “Irish model” as an example of statutory underpinning. But this is not entirely correct. The Press Council of Ireland was already established before it was recognised in statute, and then only with membership as a mitigating factor in a libel defence. It was not established by statute. (Bear in mind, by the way, Leveson watchers, that it took five years of negotiation to set up the Irish Press Council. This may go on for some time.)

Meanwhile, Germany (in terms of market size, possibly a better example for the UK) does not even permit specific laws on the press.

A press regulator cannot carry legal compulsion. Politicians already try their hardest to influence newspapers, and allowing them to create statute that will rule over the press will almost inevitably prove too tempting for a parliamentarians fed up of their eternal role as lamposts to the press’s dogs (as HL Mencken had it). Statute specifically dealing with the press will hurt free speech, no matter how much its advocates say it won’t.

Padraig Reidy is news editor at Index on Censorship

Jack Straw calls for privacy law

Former justice secretary Jack Straw has urged Parliament to amend the Human Rights Act to include a tort for breach of privacy.

“I think parliament needs to take this job on now,” Straw told the Leveson Inquiry today, adding that doing so would send a message to the public that they had “the right to have their privacy protected”.

Echoing his 2011 Gareth Williams memorial lecture, Straw said that legislating on privacy has gone “through a side door” by relying on the HRA. There is no current tort on privacy in English common law, though section 12 of the HRA says that a court must regard the extent to which a media defendant has complied with “any relevant privacy code”.

Straw, who was Home Secretary from 1997-2001 and Foreign Secretary from 2001-2006, also claimed self-regulation of the press had “palpably failed” and that regulation with statutory underpinning was the only means of compelling newspaper groups to join into a system.

“If you leave it to self-regulation we will end up with the absurd situation where they [the press] are judge and jury in their own courts,” Straw said, adding that the press “can’t go on claiming every other institution in the land needs external regulation” while it continues to regulate itself.

However he dismissed counsel Robert Jay QC’s suggestion of the possibility of state control in newspaper content as “nonsensical”.

Straw flagged newsroom culture as an area of concern, adding that the press needed to be “more examining of what they are doing” and that the Inquiry itself provided a “mirror” for journalists.

“With luck, there’ll be continuing momentum for change,” Straw said, contradicting former Downing Street spin doctor Alastair Campbell’s more pessimistic view that there was “no appetite” for media reform.

He accused the British press of being “Quixotic”, telling Leveson: “one day you’re best thing since sliced bread, next your paternity is being questioned by the same newspaper”.

He added that there was a degree of “voyeurism” among some sections of British journalism that took “no account of the responsibility of decision-making” and that there was a “willful refusal” by the press to develop an understanding of how governance works. “They reduce it so much to personality and conflict,” Straw said, adding that newspapers had contributed to a culture in which politics is seen as boring or pointless.

The Inquiry is currently focusing on relationships between the press and politicians, with Straw revealing that, during his time in the Cabinet (1997 to 2010), some newspapers were gradually “being favoured by particular ministers”.

“They had these little groups,” he said, adding that it was “very incestuous and very unhealthy” and that both sides were to blame.

Straw said one of the reasons the Blair government was too close to some of the press was because of its involvement with them during their time in opposition, a relationship it carried into Downing Street when it came to power in 1997.

“Every politician wants to have the best relationship they can with the press,” Straw said, but warned one’s own position becomes “compromised” and it could “undermine your integrity” if relationships are too close.

The Inquiry continues tomorrow, with evidence from former Sunday Times editor Sir Harry Evans and journalist Peter Oborne.

Follow Index on Censorship’s coverage of the Leveson Inquiry on Twitter – @IndexLeveson