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During his nine-month public inquiry into press standards, Lord Justice Leveson has heard many witnesses air legitimate complaints about the misconduct of the media. Now he must turn his mind to what to do about it. How should Britain’s free press be regulated?
The inquiry has set out sensible criteria for future regulation: whatever system is chosen must be effective, cheap, cover all “newspapers”, preserve media freedom and be a free service that protects the vulnerable. But finding a mechanism that delivers all this will not be simple.
Most newspapers, including this one, accept the need for change to restore public confidence after the phone-hacking scandal. But they have equally legitimate questions about the impact of regulation on what remains a distressed industry. Nor should the risks to free speech be underestimated.
New rules could raise costs and tie editors’ hands in the struggle against unregulated online competitors. Well-meaning regulations might constrain publicly useful activities, notably investigative reporting. This is not only expensive and legally risky, it exercises a vital function in a democracy by exposing injustice and holding power to account.
Lord Justice Leveson should certainly avoid regulating in areas where perfectly good criminal laws exist to stop excesses. Most of the abuses that marked the phone-hacking scandal – the interception of messages, bribing of the police, harassment, trespass and so on – were already offences. The problem was not the lack of laws; it was that they were not enforced.
The primary purpose of regulation must be to protect the public – especially those without recourse to costly lawyers – from unfair treatment at the media’s hands.
The existing system, in the form of the Press Complaints Commission, has palpably failed. While the PCC does much good work mediating in disputes between newspapers and the public, it is too close to those that it regulates and too weak to hold them to account.
The best solution would be to move to a system of “independent regulation”. This would fall short of formal state regulation or licensing of journalists – both of which could expose the press to political interference. Independent laymen, appointed by a credible mechanism free from state control, would be in a majority on the new regulatory body. This would dispel the impression of a magic circle of editors or newspaper executives sitting in judgment on itself.
The new body should have greater powers than the PCC. As well as arbitrating complaints, it would enforce compliance with the editors’ code of conduct. It should be able to investigate newspapers and impose fines, albeit only in cases of gross misconduct.
This would require some rewriting of the rules. For instance, there would need to be a new public-interest test for defending breaches of the code. The starting point must be that there is a public interest in freedom of expression; the rest is up for debate.
If there is a degree of consensus about the desired destination, several tricky issues remain to be resolved. The biggest is the question of how widely the new code should be applied. This newspaper believes that coverage must be broad. Otherwise, all the new regime will achieve will be to speed the move away from traditional print to online sources.
Yet securing support for a voluntary code from Fleet Street will be hard enough, let alone from the online world. For instance, Richard Desmond’s Express newspaper group withdrew from the PCC several years ago. Even if he comes back inside the tent, the question is how to deal with future outliers.
Optimists have suggested that incentives could be used to encourage newspapers and online services to join the new regulatory system. But many of the proposals canvassed – for instance, linking the VAT exemption enjoyed by newspapers to membership, or offering some legal privileges to participants – look impractical. It may well be that some sort of statutory underpinning will be necessary. So long as the regulatory body itself is genuinely independent, this should be workable. One of the first tasks for the body would then be to determine who should fall under its aegis.
As Lord Justice Leveson has noted, previous inquiries into the press have produced little discernible change. The phone-hacking scandal leaves him no option but to propose a new way. Independent regulation is the best of the imperfect solutions available. But it must be broad as well as tough. Sir Brian’s conclusions should reflect this.