Opinion: “Leveson: it’s all really about privacy (so start with that)” – George Brock

2 12 2011

I blame the Leveson Inquiry’s terms of reference. These ask the inquiry to recommend “a new more effective policy and regulatory regime which supports the integrity and freedom of the press”. No sooner were these words published than editors, pundits, publishers and media lawyers plunged with joyful relish into the business of elaborating “options” for toughening the powers and operation of the existing regulator, the Press Complaints Commission. The idea that the phrasing of the terms of reference is open ended, and doesn’t necessarily imply even the continuation of any self-regulatory or independent regulation, seemed not to occur to anyone at the seminars which Leveson organised as the overture to the formal hearings.

We need to step outside the confines of a debate which starts with the status quo and tries to make it work better. Refining existing regulation is a red herring. Much of the discussion about what might be called “PCC-plus” is displacement activity enjoyed in a comfortably familiar landscape. You could add a powerful, inquiring ombudsman to the PCC system (as suggested by Paul Dacre of the Daily Mail); you could set up a better regulation forum which would escape the cost and delays of court cases (Hugh Tomlinson QC); you could give the PCC statutory powers to compel papers to subscribe to its rules (Baroness Buscombe, lately PCC chairman). All these ideas, and others like them, miss the wood for the trees.

A newspaper regulation regime more effective than the PCC is perfectly imaginable, even if it would be liable to be more complicated, more expensive and slower. Seminars take place almost every week in London to elaborate new refinements. But a system based on ideas formed in the bygone era of a (relatively) profitable and dominant printed press will, in practice, be crippled by difficulties which are being neglected or under-estimated.

Toughening the press regulator means installing statutory powers as a back-up. Baroness Buscombe believes that a better PCC needs the power of law to haul recalcitrant publishers (such as Richard Desmond) into the fold, to protect newsroom whistleblowers and to make directors of newspaper companies responsible for the ethics of their newsrooms. The Lord Chief Justice has said he does not want statutory regulation of the media. The ideas for “more effective” regulation which don’t involve some statutory powers somewhere along the line are few and far between.

The arguments in favour of separate regulation for print made sense until technology offered news publishers the opportunity to transmit news and opinion on multiple platforms and consumers the freedom to switch easily between news on paper, TV, tablet, PC or smartphone. Despite the fact that most consumers of news in the UK still get their information from mainstream media, regulation which does not recognise technological convergence will look increasingly eccentric and indefensible over the next decade. Regulation based only on newspapers will look positively eccentric as the business model for print continues its downward decline.

Restrain bad behaviour and protect good reporting

British society remains divided about whether the law should strengthen the defence of individual privacy or go with the prevailing trend of digital communications technology which reduces the scope of privacy – sometimes with the willing consent of individuals and sometimes against their will. While privacy is an important issue for the news media, it is not solely a media one. Anyone with a cameraphone, whether calling themselves a journalist or not, can publish a picture which someone else claims to be private. That begs a basic question: now that journalism and journalists can’t be identified by their technology, what defines a journalist? How does a regulator know who to regulate?

A “new more effective policy and regulatory regime which supports the integrity and freedom of the press” must balance two conflicting aims. I think there is a better way than resuscitated regulation – a better way to restrain bad behaviour as well as to protect good reporting, shielding the editorial risk-taking that is essential to good journalism.

The main elements would be:

  • The PCC dissolves as an institution, although some of its activities might live on (see below).
  • A new and more detailed privacy law replaces the current “balance” between Articles 8 and 10 of the Human Rights Act. It would have to spell out in some detail – and this would trigger a public debate – the limits on claims to privacy. Those limits should be set so as not to inhibit or chill proper journalistic inquiry.
  • Work continues to reform laws which affect the media, such as libel and contempt – particularly to strengthen defences available to disclosures made in the public interest.
  • The penalties for breaking the Data Protection Act include prison (but the possibility of a public interest defence remains).
  • News media not otherwise covered by public service broadcasting rules will have stronger defences against legal attack if they can show evidence of the integrity of their newsroom: i.e. rules of conduct and their enforcement, how complaints and inaccuracies are dealt with and publicised, training and transparency.

This package – and it could only work as a combination – avoids the almost insuperable difficulties of including all publishers in a regulation system and raising enough money to run that system. This uses incentives and tries to have them work where it matters most – in the newsroom as reporters and editors think about what they do and how they do it.

Replay recent history while imagining the legal framework outlined above in operation. The late News of the World routinely invaded people’s privacy. But the same paper also did accomplished investigative work. I’m writing this on the day a London court convicted three Pakistani cricketers for corruption of the game thanks to a NoW exposure. The paper’s editor would have to assume that he would find himself fighting legal actions from time to time, often involving libel or privacy. But if he (or she) couldn’t show a clean slate in the newsroom, the paper’s case would be weakened. In short, to protect the reporters who are getting investigative scoops, the editor has to rein in bad conduct in the rest of the newsroom. The risk calculus changes and standards have to be taken more seriously. The incentive to behave a bit better is clear and can be measured by the paper’s lawyers. Websites and papers would not be compelled to show that their reporters were kept to known rules. Declaring and keeping better standards would be a choice. It could be made by newsrooms individually or collectively. A group of publications could develop further their shared standards. They could jointly employ an ombudsman or use a mediation system for complainants or litigants, retaining the skills and techniques which made the PCC effective in that area. Again, no compulsion. The incentive to do better and be seen to do better might be a general desire to enhance a paper’s image or a wish to strengthen legal defences, or both.

The state would be kept out of any detailed surveillance of what happens in a newsroom. A “mixed economy” of regulation would still exist, combining the strict rules governing public service broadcasting with greater latitude for print and online. The argument for this mixture lies in the acknowledgement by the BBC that its journalists could not have broken the stories of MPs’ expenses (which involved payment) or of phone hacking (which would have left the BBC open to accusations of breaching impartiality rules).

Writing a privacy law entails a huge risk for the news media. But given the vast changes wrought in attitudes to privacy by technology, a wellbalanced law would be the least bad outcome. The attempts by judges to “balance” Articles 8 and 10 of the Human Rights Act (those guaranteeing rights to both privacy and to free expression) have not worked well.

The issues raised by the judges will have to be fought in wider debate. The heart of the issue is not phone hacking but the material carried on Gawker or Twitter. I would argue that the public interest does not justify any and every exposure of hypocrisy. But I’d also want the law to disappoint crooks who hope to shield their misdeed behind a new privacy statute. Why should this balance be harder to strike and operate than “co-regulation” or “statutory-lite”?

George Brock is professor and head of journalism at City University London. He worked for The Times 1981-2009.

This piece originally appeared in the British Journalism Review and on George Brock’s Blog.  It is reproduced with permission and thanks.

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5 12 2011
Law and Media Round Up – 5 December 2011 « Inforrm's Blog

[…] Opinion: “Leveson: it’s all really about privacy (so start with that)”. Professor George Brock outlines his vision for the future of media law and regulation, a “package” including a “new and more detailed privacy law”. […]

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