2010 was full of vociferous comment on the libel reform campaign; 2011 gave us Ryan Giggs and ‘superinjunction spring’. And 2012 provided the finer detail of the phone-hacking scandal and the resulting Leveson Inquiry. Anyone browsing the array of domestic newspapers over the last few years would be forgiven for believing that editors were no longer primarily concerned with just lurid crime, celebrity and sport, but also with a story closer to their own hearts – proposals to limit the free speech of the British press.
In a bout of extended navel-gazing, measured perhaps in column feet rather than column inches, the papers have been devoted to a variety of media-centric stories. Now, in 2013, the media law issue of the year looks set to be the controversy over the actual implementation of Lord Justice Leveson’s recommendations.
The background to the Leveson Inquiry is well-rehearsed. For a number of years a minority of newspapers, notably the Guardian, pursued a story about the unethical journalistic practice of voicemail interception – ‘phone-hacking’ – carried out by the now defunct Sunday tabloid News of the World. As high-profile names including that of actress Sienna Miller, comedian Steve Coogan and singer Charlotte Church went to court over the issue, the story slowly grew in momentum. Finally, when news broke that murdered teenager Milly Dowler’s mobile telephone had been hacked, the public’s consciousness was thoroughly pricked. While invasions into the private lives of those who grace the silver and TV screens might have been tolerable to us, the double atrocity perpetrated on Milly Dowler and her family – first by her murderer and then by the News of the World – was a step too far for the public. And seemingly for the paper’s proprietor, Rupert Murdoch, as shortly afterwards he closed the 168-year-old newspaper.
In the wake of the scandal, prime minister David Cameron launched an inquiry into the culture, practice and ethics of the press. This became the year-long Leveson Inquiry, looking into the relationship between the press and the public, the press and police, and the press and politicians. Leveson summed up his task thus: the question that had to be answered was, ‘Who guards the guardians?’ – a reference to the important public watchdog role played by the press.
In November 2012, Lord Justice Leveson finally handed down his eagerly awaited recommendations for the future of press regulation. These included a complete overhaul of the current system, amid criticism that the Press Complaints Commission, the existing press self-regulatory body, had effectively been the media marking its own homework for years.
The inquiry’s report included substantial recommendations to ensure that the role played by any new regulator should be meaningful, allow for proper redress to any wronged member of the public, and warrant the respect and trust of the public. The recommendations included that the press be allowed to continue voluntarily to self-regulate. ‘By far the best option’, the report summary said, ‘would be for all publishers to choose to sign up to a satisfactory self-regulatory regime’. But an independent recognition body should be established to perform the function of periodically assessing whether the new regulator was carrying out its role of holding the press to account effectively. A carrot-and-stick approach – with ‘convincing incentives’ – both for litigants to use a new and effective arbitration service to deal with complaints, and for press bodies to join the new regulator, was proposed.
All this was to be implemented by a short piece of government legislation. There were three reasons why this legislation was needed, all set out in the Leveson Report Executive Summary: ‘First, it would enshrine, for the first time, a legal duty on the government to protect the freedom of the press. Second, it would provide an independent process to recognise the new self-regulatory body and reassure the public that the basic requirements of independence and effectiveness were met and continue to be met… Third, by recognising the new body, it would validate its standards code and the arbitral system sufficient to justify the benefits in law that would flow to those who subscribed…’
Since these recommendations were made, debate has been raging in the corridors of Westminster and across Fleet Street as to the extent and nature that the recommendations are implemented. This began almost the moment the report was published, as Cameron effectively pooh-poohed the fundamental plank of the report in parliament the very next day, seeming demure from his previous commitment to implement Leveson’s recommendations unless they were ‘bonkers’. The apparently ‘bonkers’ problem with the report was, in his view, the suggestion that the proposed new system needed statutory underpinning. His stance would surely appeal to the press, because ‘statute’ is a word that most journalists would never put in a sentence together with the words ‘free speech’.
After much debate, in private, public and in the papers, finally, at around 2.30am on 18 March, the three main political parties announced they had reached agreement on implementation. The deal is historic in that it aims to persuade the press into a meaningful form of self-regulation for the first time, and one not dissimilar in substance from that recommended by Leveson. Cameron and the press had been avidly opposed to any use of the heinous concept of statute in implementing Leveson. So the deal championed by the Conservatives and agreed by Labour and the Liberal Democrats proposes to use a Royal Charter body, necessarily approved by the Privy Council, to act as the recognition body. The body is nonetheless, however, going to be underpinned by legislation – requiring a two-thirds majority vote in parliament to amend the Royal Charter.
Press reaction to the 18 March deal has been one large part of righteous indignation, and a pinch or two of sensible comment. Add to the mix rumours that much of the Fourth Estate is considering a total boycott of the new self-regulator and a legal challenge to the incentives they would face under it, and one year and millions of pounds on, the question remains whether the Leveson Inquiry has been time and money well spent. The press’s allergic reaction to statute may have resulted in the swapping of legislation for Royal Charter for part of the proposals – but the Royal Charter itself will still be underpinned by statute. And where are Lord Leveson’s magic words, enshrining a legal duty on government to protect the freedom of the press? Surely a rather big baby to have thrown out with the Leveson recommendation bath water, seemingly as a result of the press’s aversion to the ‘S’ word.
The press as watchdog and bloodhound of society may not always be the feral beast that former PM Tony Blair termed it, but it is a powerful creature. It is therefore somewhat surprising that politicians, who rely heavily on the public’s perception of them from the press, should agree to wield a firm hand over the press hound which could easily inflict some pain on them, not least at voting time. It is a cliche – but no less real for that – that the press has been drinking in the last chance saloon of self-regulation for years, with politicians too afraid to call time.
The phone-hacking scandal was never simply about the civil and criminal wrongs of journalists listening to private citizens’ voicemails. It was also about addressing an unhealthy culture that had infected the hugely powerful press that insinuates itself into every aspect of our lives in its trusted role to educate, inform and entertain. And about the failure of the authorities – police and politicians alike – to do anything to right the wrongs that had been done to the public along the way. It would appear that MPs are now prepared to follow through with some stricter rules to push the excessive binge-drinking press in the last chance saloon out into the real world. Yet there is a long way to go before any new system is in place, let alone working smoothly or at all.
Any right-minded member of society believes in free speech. But that fundamental right brings with it responsibilities, including that freedom of speech is exercised responsibly without any unjustified incursion into the rights of others. To ensure the right balance, the rule of law – defamation, privacy, protection from harassment, data protection, to name a few examples – must be obeyed and prosecuted robustly by the authorities where it is not. But there is also certainly room for a robust regulator to require that high standards are upheld and that we, the public, may expect and enjoy a press that is vibrant and vociferous but one which acts lawfully and can be trusted.
Amber Melville-Brown is a partner at Withers and heads the media and reputation management team; Rupert Cowper-Coles is a specialist solicitor in the team