It’s funny, but before two weeks ago, I can’t remember the last time I heard the phrases “slippery slope” or “crossing the Rubicon”. In the run up to, and immediately after, the publication of the Leveson report we have heard of little else. – That and “underpinning”, another phrase not otherwise in general use.
Hopefully, the weekend has allowed people to actually read some of Leveson’s report and we may now hear less of slopes slippery and rivers Rubicon.
In the report, Sir Brian Leveson is at pains to point out, numerous times, that he wants “voluntary independent self-regulation”.
On page 1780, Volume 4, he writes that:
the ideal outcome from my perspective is a satisfactory self organised but independent regulatory body, established by the industry, that is able to secure the voluntary support and membership of the entire industry and thus able to command the support of the public.
As I read through parts of the report, I lost count of the times that he repeats and emphasises that he wants the regulation to be voluntary.
In the executive summary (paragraph 70 onwards), Sir Brian is very clear indeed that the main reason he proposes some legislation is so that the courts can recognise that a news outlet is part of a “satisfactory…regulatory body” in order that a system of incentives can operate. If a paper is a member of such a body, their damages may be less if they lose a court case for, as an example, defamation.
So you can see that Leveson is bending over backwards to make the regulatory system voluntary. Indeed, his proposals elevate reasonableness to an art form.
Crucially, Leveson also specifically states (in paragraph 71) that:
the legislation would not establish a body to regulate the press: it would be up to the press to come forward with their own body that meets the criteria laid down.
I have bolded that quote. I would like it to be embossed on the forehead of every “slippery slope” merchant currently doing the rounds of the media. The proposed legislation does not set up a regulatory body. It merely sets up facilitative legislation for an independent voluntary press industry-organised body or bodies to exist and function satisfactorily.
On page 1780 of volume 4, Sir Brian tackles the “slippery slope” argument head on.
Firstly he points out that the British parliament is anything but “itching” to control the press. Indeed, they have run a million miles at the speed of Usain Bolt from any opportunity to regulate the press over the last fifty years (my paraphrasing).
Secondly, he rubbishes the idea that it is easier to amend an existing Act than to bring in a new one:
Any statute only gives Government, or anyone else, the powers that are stated on the face of the legislation. If a statute simply provides for a recognition process for a press regulatory body then it can only be used for that purpose. Any attempt to introduce further legislation of the press would require a new Act of Parliament which make new provisions or amend an existing Act, but it would need to be a new Act, and go through exactly the same processes that an Act establishing a recognition process would need to do today.
Thirdly, and crucially, he proposes that any bill would:
…place an explicit duty on the Government to protect the freedom of the press.
That is key, as it explicitly impedes any “slippery slope”. Any government which wishes to control the press in future, would, first, have to overturn this law. That would seem to be an almost insuperable challenge, once it is in place.
The legislation proposed by Leveson is the lightest of light touches, being legislation to:
…identify the legitimate requirements to be met by an independent regulator organised by the press, and to provide for a process of recognition and review of whether those requirements are and continue to be met…(and to) place an explicit duty on the Government to uphold and protect the freedom of the press.
We really do need to drop this silly fetish for avoiding all legislation which has even the lightest of impacts on the press.
For starters, it is completely illusory that the press currently operates in a legal vacuum. There is plenty of legislation which applies to the press already. Some of it started with King James I, during whose reign the first defamation precedents in common law started to take shape. We crossed the Rubicon in about 1610. Indeed, writing in the New Statesman, David Allen Green identifies over 85 statutes which can be applicable to a working journalist.
There are plenty of international examples where countries have passed legislation to enshrine the rights and responsibilities of the press. Far from weakening press freedom, such laws have maintained and even enhanced the reputation of those countries as free press exemplars.
Leveson mentions the example of Ireland (number 15 in the Press Freedom Index - against the UK which is 28th).
We should also look at Finland, who are joint first in the World Press Freedom Index. Are they a legislative vacuum as far as laws concerning the press go? Far from it.
As far back as nearly a century ago in 1919, the Finns passed a law which gave anyone who claimed that material printed about her or him was incorrect or offensive the right to demand a correction.
In 2004, a Finnish law was passed called the “Act on the Exercise of Freedom of Expression in the Mass Media” which stipulated, amongst other things, that publications must have a designated editor and must allow a right of reply/right to correction.
(Those Finnish laws also combined elements to enshrine the rights of the press.)
It is only in the little UK bubble created by some vested media interests that any legislation whatsoever, however “light touch”, concerning the press is supposed to automatically send us careering headlong at 90 mph towards inevitably joining North Korea and Eritrea as international pariahs languishing at rock bottom of the Press Freedom Index. It is ridiculous (even in its unexaggerated form). All of the top ten countries in the Press Freedom Index have rights and responsibilities of the press written into their legal system, with the arguable exception of Iceland, who have recently passed a law which makes them “journalist heaven”.
There has been much (arguably disproportionate) hoo-ha about the role of Ofcom in all this. (Ian Hislop makes some very valid points about this aspect.) Leveson mentions Ofcom with respect to two roles:
1. As a recognition body to verify that any regulatory body meets given standards.
In fact, Leveson leaves open the alternative for this recognition body to not be Ofcom, but an independent “Recognition Commission” or “Commissioner” supported by Ofcom’s officials, appointed by a process independent of the press, Government and legislature. Leveson mentions the Commissioner for Public Appointments and the Chairman of the Judicial Appointments Commission as possibilities for this role.
2. As a “backstop” regulator.
However, Leveson again leaves open the possibility that this is not Ofcom, and gives several alternatives to having a backstop regulator such as “do nothing”, “naming and shaming” or the establishment of a “complainants’ champion”. He also discusses the possibility of extending the role of the Information Commissioner or setting up a separate commissioner.
By the way, Ofcom is not the devil incarnate, as some press elements would want you to believe. It should be remembered that the people who finally, albeit posthumously, shopped Jimmy Savile were regulated by Ofcom – not our “raucous press” – but dear old ITV.
There has been a remarkable amount of spin about the view of Liberty and its director Shami Chakrabarti. Some of it has been misleading. You can read Liberty’s full statement on Leveson, written by Shami Chakrabarti here. Liberty support the main objective of the legislation which Leveson proposes, namely the system of incentives mentioned above. Indeed their website waxes lyrical about Leveson’s proposals at considerable length. The one thing they object to is a government-appointed “back stop” regulator alluded to above. Presumably, they would support one of the alternatives suggested by Leveson such as “do nothing”, “naming and shaming”, a “complainants’ champion” or an independently-appointed commissioner. So, by going with one of the “back stop” options suggested by Leveson (other than the use of Ofcom), I assume Liberty would be happy with the whole Leveson package, since the single objection they raise is to a government-appointed “back stop” regulator.
Some have said that Leveson’s proposals don’t address the internet. They do actually, and Liberty single out that aspect of Leveson’s report for praise.
Some have asked: What does Leveson propose if media outlets don’t voluntarily join the self-regulatory body or bodies? The back stop options outlined above answer that query. So, if some media outlets don’t join the self-regulatory body there are the options of Leveson’s preference of Ofcom, “do nothing”, “name and shame”, the Complainants’ Champion or an independent commission or commissioner. Leveson devotes the whole of Chapter 8 of Volume 4 to “Alternatives”.
Finally, don’t take my word for all this. Nick Davies is the Guardian journalist responsible for uncovering the News of the World hacking affair. Last Thursday he wrote in strong support of Leveson’s proposals:
…From a reporter’s point of view, there is no obvious problem with the core of Leveson’s report, his system of “independent self-regulation”.
…There is a nightmare here, but it is for the old guard of Fleet Street. To lose control of the regulator is to lose their licence to do exactly as they please.
…the real problem, of course, is in the power of the beast. This debate is not about to be settled with facts and reasoned argument. It will be conducted under the same old rules – of falsehood, distortion and bullying. Will any government stand up to it? That’s where the real nightmare may lie.