View from Australia, Media Regulation: Damned if you do, damned if you don’t – Peter Bartlett

21 11 2012

Lord Justice Leveson faces far more challenges in preparing his Report than those who prepared the Finkelstein Report and the Convergence Review in Australia.  The environment in the UK is entirely different.

I was in London when the Milly Dowler story broke and when the last issue of News of the World was published.  I have a copy of that impressive last issue in my office.  Since then, like all of us, I have closely followed the developments in London.  Like many of us who are close to the media, I have been appalled that such practices occurred and disappointed that the reputation of the media and so many quality journalists unassociated with wrongdoing, have been tainted.  In my experience, such practices do not occur in Australia.

The Finkelstein Report and Convergence Review were looking at possible ways of improving a system that actually works pretty well now.

Leveson LJ prepares his report at a time when extraordinary revelations of improper activity have come to light.  Charges have been laid.  The public is demanding action.  It is demanding reform.

If Leveson goes too far in recommending media regulation, he will be attacked by the media and free speech advocates.  If he does not go far enough the public and politicians will attack him.  His task is a difficult one, to pitch the recommendations at the right level.

I was again in London in May this year and had the pleasure of having a one on one meeting with Lord Justice Leveson in his Chambers.  It was the day after Tony Blair gave evidence and a man entered the hearing room screaming abuse at Blair.  I found Leveson to be, not surprisingly, very impressive.  He recognises the huge challenges facing him.

I am pleased that he will be giving a talk at the Centre for Advanced Journalism (of which I chair the advisory board) at Melbourne University, in early December.

The Finkelstein Report summarised the issue that Leveson LJ faces:

‘How to accommodate the increasing and legitimate demand for press accountability, but to do so in a way that does not increase state power or inhibit the vigorous democratic role the press should play or undermine the key rationales for free speech and a free press.’

The difficulties facing Leveson LJ is illustrated by the different approaches taken by the Finkelstein Report and the Australian Convergence Review.  The Convergence Review recommended self regulation whereas Finkelstein recommended a statutory authority.

Clearly the demand for press accountability in the UK is stronger than that in Australia, due to the clear ethical breaches in the UK.

The Leveson Inquiry is looking at:

  • the relationship between the press and the public, looking at phone hacking and other potentially illegal behaviour
  • the relationship between the press and the Police
  • the relationship between the press and politicians
  • it will make recommendations on ‘effective policy and regulation that supports integrity and freedom of the press while encouraging the highest ethical standards’

What a challenge.  The pressure on Leveson LJ is huge.

On the one side, we have the victims.  David Sherborne, a barrister for some of the victims including Hugh Grant, Kate and Gerry McCann and the parents of Milly Dowler, told the Inquiry:

 ‘The press is on trial here, and not simply in this room, but also out there in the court of public opinion, and they know it.  That is why they are so scared at what evidence has been heard here.’

 He added:

 ‘Unless someone takes a grip, a very firm grip, of the tabloid press, we will be back to the same position as soon as the spotlight is turned off and the ink is dry on your report.’

On the other side, is the media.

Let us remember that the vast number of journalists are very conscious of the ethical rules and work within them.  True there are some rogue elements at the News of the World but the challenge for Lord Justice Leveson is to pitch his recommendations at the right level.  He should not go overboard, assuming that all sections of the media need to be subject to over regulation.  Then again, he needs to recommend a system where these rogue journalists are brought to account.

Leveson LJ gave some insight into his thinking when Tony Blair was in the witness box.  He said that any successor to the Press Complaints Commission would have to be independent of the government, independent of the state, independent of parliament, but independent of the press.  He added that such a body would have to have ‘journalism expertise on it or available to it’ and ‘must command the respect of the press but equally the respect of the public’.

The judge also indicated that his report would cover:

  • the need to alert people who were about to be criticised in the media, prior to publication
  • the possible need for the media to have an ombudsman to advise editors ahead of publication
  • the need for swift resolution of privacy and defamation complaints
  • the need for sanctions (fines) against newspapers that breach standards
  • regulation that covers the different forms of publication.

He said:

 ‘I am struck by the fact that what the BBC does is covered by quite different rules to what the Guardian or News International does, and yet you could look at their websites and on the fact of it, they’re doing similar things.’

 Leveson LJ will be seeking to frame his recommendations in a form that will be adopted by the government.  He is conscious that many, many reports delivered to government gather dust on the shelves.  He said to Tony Blair that he believed that there was a need for ‘political consensus’ if his recommendations were to be adopted.

The challenge for the judge was highlighted by the Prime Minister, David Cameron.  He made it clear in his evidence to the Inquiry that his instinct was against any new statute.  He appears to favour a proposal drawn up by Lord Black of Brentwood, the chairman of the Press Standards Board of Finance.  Lord Black favours a self regulatory system where the media sign contracts agreeing to cooperate with the regulator.  The regulator would have the power to impose significant fines.

The UK Labour party supports some form of ‘statutory support’ for the regulator.  It supports limits on newspaper ownership which would force News International to sell one of its British papers.

The difficulty faced by the judge became even clearer when the UK Education Secretary, Michael Gove, said that the Inquiry was having a ‘chilling’ effect.  Lord Justice Leveson then contacted the Cabinet Secretary ‘to find out whether Mr Gove was speaking for the government, whether it was thought that the very existence of the Inquiry was having a chilling effect on healthy vibrant journalism, and whether the government had effectively a settled view on any potential recommendations.’

 

The judge emphasised that he had no ‘hidden agenda’.  He added that he would ‘not be deterred from seeking to fulfil the terms of reference’ that had been set for him.

He is certainly following through on that promise and the industry should be nervous.  He has recently sent a 100 page letter to all major national and regional newspapers warning them about some of the criticisms which may be in his report.  The editor of the Independent says he fears that Leveson is ‘loading a gun’ against the industry.  Whilst some of the criticisms in the letter are said to be justified, others relate to the renegades in the industry, rather than the industry as a whole.

An added difficulty for Leveson LJ is how to ensure that his report covers the issues it needs to cover without prejudicing the fair trial of those who are charged.

I do not envy the position the judge is in.  It is extremely difficult, if not impossible, to frame recommendations that will be universally applauded.  Whatever he recommends he will be attacked.  Whatever we think of his recommendations, we should keep in mind that Lord Justice Leveson is an honourable man who has done his best, under the most intense pressure from a range of people who have violently differing views on what should happen.

Peter Bartlett is a partner in Minter Ellison in Melbourne.

A shorter version of this post was published in Walkley Magazine.

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26 11 2012
Law and Media Round Up – 26 November 2012 « Inforrm's Blog

[...] View from Australia, Media Regulation: Damned if you do, damned if you don’t – Peter Bartlett [...]

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