It was this newspaper’s revelations of phone hacking by parts of the tabloid press that led in 2011 to Lord Justice Leveson’s inquiry into the “culture, practices and ethics” of an industry. The judge heard striking testimony from victims of media mistreatment, many of whom had awful tales of prolonged harassment and gross invasions of privacy. The airing of illegal practices carried out by the press over years led to very public criminal trials. Individuals went to jail. This seems the right way to do things: journalists expose wrongdoing; the agitation it produces is submitted to; and existing criminal and civil law processes kicked in to administer justice. There was a twist. Leveson clearly thought that parts of the press were out of control, and unresisted pressure built up for collective punishment.
What we have ended up with is a form of press regulation – enabled by a medieval piece of constitutional nonsense, the royal charter – consisting of small carrots and big sticks. Newspapers can sign up to a state-approved regulator. The only one endorsed so far is Impress, which is hardly independent given it is funded by Max Mosley, a wealthy victim of press intrusion into his sex life. Impress has distinctly unimpressed, failing to attract any significant national or local news outlets. The sanction has been smuggled into section 40 of the Crime and Courts Act. Those that refuse to join a system of regulation would be subjected to a form of unnatural justice: non-cooperative newspapers face paying the legal costs of both sides even in cases they win. This would have a deeply chilling effect on investigative journalism and help make the wealthy and powerful unaccountable. Editors would be forced to think long and hard before confronting anyone with deep pockets, never mind taking on dozens of millionaires who were outed by this newspaper when it published the hidden offshore tax affairs of the super-rich in the Panama Papers. In cases involving national security, where deep source protection sits at the heart of a story, the result would be not just a colder climate but a freezing one.
A free press is a constitutional necessity, not an ornamental timepiece. There is no other option but to repeal section 40. The Guardian believes that the independence of the press is best served by self- not state- regulation. Most others agree. Ipso, an “unapproved” regulator, remains a creature of much of Fleet Street. Impress and Ipso should be allowed to continue to administer their own forms of self-regulation. The Guardian, along with the Financial Times, has decided to pursue its own model of oversight, accountable to readers and the public. Peers in the upper house who threaten to reintroduce section 40 by the back door, in effect threatening the government with what Oliver Letwin described as “trench warfare”, are simply wrong. There is an issue of inequality of justice in this information age. The law must apply to the mighty and the meek in the same way. Politicians should think what weapons ordinary people, down on their luck, can call on to fight their corner. Reformed access to the civil justice system would help.
What is missing here is an appreciation of the present. Investigations into past behaviour ignore what the media industry is today. Facebook is by far the most pervasive network for news. Google dwarfs others in terms of media distribution. Sparky websites and blogs vie with traditional newsprint for readers and advertising revenue. Yet there is silence on the means to regulate them. Just as bizarre, given the fact the BBC is being taken to court by Sir Cliff Richard, is that the broadcaster is excluded from the purview of the proposed laws. Left unopposed, we will get an unequal system of media law that targets a specific type of news organisation, not a specific form of poor conduct. Such malpractice will no doubt feature in the outcome of the 43-month-long independent review into the unsolved murder of the private investigator Daniel Morgan, which involves the police and the media.
A fitting coda to Leveson would be not another inquiry, but a referral of the proposed merger of 21st Century Fox with Sky to Ofcom. Consolidating media power in the hands of the many accused of wilful blindness to the practices that went on at News International is highly questionable. A press that is free to investigate and criticise is essential for good governance. Newspapers often take advantage of their freedom. But Thomas Jefferson, one of America’s founding fathers, perhaps put it best: “Our liberty cannot be guarded but by the freedom of the press, nor that be limited without danger of losing it.”