Opinion: The Real World Strikes Back, why Charlie Beckett is wrong about statute and regulation – Hugh Tomlinson QC

25 11 2012

In a powerful piece on this blog, Charlie Beckett has argued strongly against what he calls “statutory newspaper regulation” and, with evident reluctance, has backed the “evil empire” of the British press. In this post I will argue that he is unrealistic and wrong.

Charlie Beckett acknowledges that he is in bad company and accepts that it is difficult to defend “the profit pursuing, partisan and prying press in practice“.   He says that he wants “tough and independent regulation“.  In particular:

  • stronger regulation: more independent, more transparent with tougher penalties and easier access to support for complaint”.
  • “Legal redress needs to be cheaper”.
  • “I want a right of reply that will really embarrass offenders”

It is difficult to disagree.  There appears to be a broad consensus that something much tougher and more effective than the discredited non-regulatory regime of the Press Complaints Commission is needed.

What then is his the objection to statutory underpinning to regulation:

“I do not want any system that, in effect, licences journalists or newspapers. This is because I am convinced that politicians and the rest of the establishment will seek to restrict press freedom further over time. Not just on the big issues or major scandals, but in a creeping way over coverage of the courts, the civil service, political parties and corporations”.

There are two problems with this argument.  First, regulation with statutory underpinning is not “in effect”, licensing of newspapers (and has nothing to do with journalists).   It is not licensing at all.  It is perfectly possible to have statutory underpinning without any compulsion at all.  This was the proposal made by the Media Regulation Roundtable: a voluntary system with incentive.  Even if regulation were to be compulsory for large publishers this will not be licensing – those who run companies which publish to very large numbers of readers will simply be required to comply with additional standards of corporate responsibility.  Just like those who operate factories or provide professional services.  With power comes responsibility.

Second, there is the “slippery slope” argument.  This has been repeated ad nauseum by spokesmen for the large media corporations.  The problem is that there is no evidence to support it.  No one ever gives concrete examples from history to show how regulation has led inexorably to control.  And history is entirely against it.  Judges, lawyers and of course broadcaster are subject to statutory regulation but there is no “slippery slope” showing increasing state control over judicial decisions or the content of ITN news broadcasts.  What is more, every credible model for statutory underpinning advanced to the Leveson Inquiry has built-in guarantees of independence from the state.  Lord Justice Leveson himself floated the idea of an independent appointment of members of a regulatory body along the same lines as independent judicial appointment.

The next argument which is advanced against statutory regulation is that

“Many of the worst cases highlighted during the Leveson Inquiry were illegal breaches of privacy that should be dealt with under existing law. But the bulk of the everyday faults of the newspapers are largely about stupidity and bias, and law won’t stop that”.

No.  The “bulk of the everyday faults of the newspapers” relate to prying, bullying and inaccuracy.  These are matters which are supposed to be covered already by the Editors’ Code (which most newspapers have subscribed to for over 20 years).   The reason that these faults continue is because the Code is not enforced.  And that is not going to change if the press continue to “regulate” themselves.  The criminal law is a remedy of last resort – what is needed is proper compliance with rules of accuracy, fairness and decency on a day to day basis.

And this is where the opponents of statutory underpinning need to take a reality check.  Those who wish the “end” must also wish the “means”. Anyone who wishes to have tough, independent regulation must also wish the means of achieving it.  Another cosy cartel of editors and proprietors will not produce the result that Charlie Beckett wants.  The Media Standards Trust has recently demolished the “Hunt/Black” plan – which is not independent, is dominated by vested interests and will probably make things worse.  There is no other “non statutory” approach on the table – Lords Hunt and Black have had the greatest difficulty in persuading the press the sign up even to this enfeebled model (even now it is not clear whether any have actually signed on the dotted line).

And Charlie Beckett’s other laudable aims of “cheaper legal redresss” and a “right of reply” have to come from a statute.  Private agreement among newspapers will not achieve them.

In truth, the alternatives are stark.  Either we can allow the press to carry on with their “editors’ club” model of “self-regulation” – in which case the abuses will continue.  Or, bring in a statute to underpin a new and effective regulatory system which actually requires the press to obey the rules which they have claimed to subscribe to for many years.   Only the second alternative meets the reality test.

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2 responses

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

[…] Opinion: The Real World Strikes Back, why Charlie Beckett is wrong about statute and regulation – … […]

2 12 2012
Leveson and Legality: implementation of the Report would not be Illegal – Hugh Tomlinson QC « Inforrm's Blog

[…] The suggestion that legislation “may have serious unintended consequences” does not bear serious examination.  This is the idea that there is a “slippery slope” leading to  state control of the press.  As I said in a previous post on this blog: […]

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