Politics & Society

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

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10 Comments

  1. Posted 27Nov12 at 11:19 am | Permalink

    This is disappointing, Padraig. What you refer to is only one type of statutory regulation, and not the most likely. Here is a likely proposal (or at least a popular one): http://zelo-street.blogspot.co.uk/2012/11/leveson-is-served-34.html

    Regulation of the media is not about government control. It is about independence and accountability. You are not defending free speech. You are defending freedom to take excessive risks.

  2. Posted 27Nov12 at 11:30 am | Permalink
    Padraig Reidy

    The issue is leverage, Matt. Parliament giveth, and parliament taketh away

  3. Posted 27Nov12 at 11:48 am | Permalink

    The issue is influence. The issue is control, but from the opposite end. There are media organisations who have so much influence that they are able to shape politics. Rupert Murdoch told the inquiry something like “Prime Ministers keep wanting to meet with me. I wish they’d leave me alone.”, as though to deny his desire to meddle in politics. Whether it’s that way or the opposite, it’s bad. The red tops are throwing everything they have at Leveson because they are scared to death of losing that influence and control over the political process. Under a regulatory regime, reporting on public interest matters would have to be accurate, something that the PCC demanded but rarely enforced.

    Parliament may taketh away what it giveth, but at least we elect them. They should be concerned about our votes, not the narrow interests of newspapers. Currently many newspapers conflate the public interest with their own interests and make so-called public interest decisions without having to defend them to the public. What’s good for News International is not necessarily what is good for the public.

    This is the best thing I’ve read on Leveson: http://lawrenceserewicz.wordpress.com/2012/11/22/how-the-free-press-threatens-the-uks-media-and-political-establishment/

  4. Posted 28Nov12 at 1:36 pm | Permalink

    Sorry Padraig, but your attempt to distinguish between the Irish model and the proposals for the UK is spurious.

    1. No-one ever said the regulator was created by statute, on the contrary, everyone’s been very clear that it wasn’t. It’s recognised in statute – through statutory underpinning (or a statutory backstop as it’s also called).
    2. There’s nothing preventing this happening now – the industry as a whole (including the NUJ and other interested parties) given a timeframe to create a model for truly independent regulation which can then be recognised in statute.

    The NUJ is proposing something along the lines of the Irish model – something Index on Censorship appears to have supported given the only mentions of it on your site are positive pieces by Michael Foley.

  5. Posted 28Nov12 at 1:37 pm | Permalink

    It’s also very important to note that the Irish system was created under the threat of serious threats of major statutory control of the media.

  6. Posted 28Nov12 at 1:43 pm | Permalink

    Hi Donncha
    The fact is that Schedule 2 of the Defamation Act does give the Minister for Justice the power to decide who is “suitable” to represent the public on the council. It may seem small, but it’s significant.

    Index never “supported” the Irish model. We ran one report by Michael, and one explainer.

    You’re right to point out the considerable threat the press was under before the eventual model was arrived at. But bear in mind, the first perceived “failure” of the Council (kate middleton pics) and Alan Shatter started waving the privacy law around again. Stat underpinning will keep politicians out of the press – quite the opposite.

  7. Posted 28Nov12 at 2:05 pm | Permalink

    So Shatter’s threats are worse than Desmond threatening to pull his cash out and shut the paper? Or the Irish Sun sacking its editor to embed Sun DNA? With the Ombudsman and the PCI, the industry is in far better shape to fight the government than it was before and having a similar system here would bolster that even further (having the same companies involved). The current “debate” is ridiculous – we have people arguing that the current laws are enough (arrest more hacks) instead of joining together to get something out of it. Papers like the Telegraph and the Sun are more interested in hammering the union than making any real point – Christ, Murdoch is happy to work in China under serious restrictions to make money. If the industry were to unite to get the same deal as Ireland – the only statutory impact is cheaper defamation cases – and to liberalise the libel laws at the same time, we’d probably get it.

  8. Posted 29Nov12 at 10:17 am | Permalink

    The main thing wrong with the reasoning of this article (I think, and please forgive me Padraig) is that it looks on statutory regulation as analogous to the regulation of professionals, i.e. individuals. It ignores that the press is an industry and it is this which needs regulating. What happens to individual bad actors will be for editors, managers, and proprietors to decide. These are the people who are ultimately responsible. There will of course be nothing so ridiculous as the striking off of a journalist, but I can imagine the licensing of editors. I don’t think that would be necessary though. Carl Gardner nicely and emphatically sums this all up. Statutory regulation is “of course” needed. It’s a “no-brainer”.

    http://www.headoflegal.com/2012/11/28/we-must-have-statutory-regulation-and-libertion-of-the-press/

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