A Free Press Means to Publish and be Damned

Milton warned that “the attempt to keep out evil doctrine by licensing is like the exploit of that gallant man who thought to keep out the crows by shutting his park gate”. Today Britain is full of gallant men — judges, politicians, hacked celebrities and that Gilbertian anomaly “the media commentator” — who think that the law is not good enough for newspapers. They must be “regulated” — by some statutory or otherwise empowered body of worthies rather like themselves. The Prime Minister, declaring himself in favour of “independent regulation” (Labour prefers “self-regulation”) has tasked Lord Justice Leveson with recommending “a new and more effective policy and regulatory regime”. This clamour is the illogical result of the way in which the News of the World, with the connivance of Scotland Yard, breached the criminal law, by bribing police officers for information and by illegally hacking into telephones. Evidently there is a need to enforce existing law, but what is the case for supplementing it with a new administrative quango entitled to look over the shoulders — and to feel the collars — of those who exercise, by occupation, the right to write?

The given reason is the failure of the self-regulatory system. First the Press Council, and then the Press Complaints Commission (PCC) have over the past 58 years pretended to the public that they were capable of deterring press malpractice and could actually enforce a code of conduct against invasions of privacy. But in 2009 the PCC foolishly undertook an “inquiry” into phone-hacking: lacking any power to inquire or any savvy as an inquirer, it cleared the News of the World and condemned the Guardian for revealing what turned out to be the truth. Meanwhile, its claims to protect privacy were ridiculed by judges, who created an over-broad privacy law by using Article 8 of the European Convention. The PCC was perceived as a confidence trick that had ceased to inspire confidence. So the Prime Minister declared it a failure and called on a judge to find an “effective” replacement. We do, admittedly, need a proper privacy law-narrowly defined in a statute and applied by juries rather than judges. A press ombudsman, who could order corrections and rights of reply as a speedy and cheap alternative to libel litigation, would not threaten free speech. But the history of self-regulation shows that both the press and the public would be better off without either the PCC or any new tribunal with effective powers over newspapers. 

It is ironic to reflect that it all came about through the efforts of a young journalist MP, Michael Foot, whose swingeing attack on Fleet Street editors as “stooges, ciphers and sycophants” influenced the first Royal Commission on the Press (which reported in 1949) to recommend a voluntary Press Council which, by discouraging “undesirable types of journalistic conduct…would build up a code of conduct in accordance with the highest professional standards”. This was at a time when English press law — especially of libel and contempt — was at its most repressive, and the object of the reformers was not only to protect journalists from being forced to write propaganda to accord with the political views of proprietors, but to have a powerful body which could champion press freedom. The introduction of a private member’s Bill to set up a statutory disciplinary body spurred the creation of the Press Council in 1953, but it fell far short of reformers’ expectations. It was chaired by the proprietor of The Times, had no lay membership and operated in the interests of the political establishment; its first adjudication was a ruling that a Daily Mirror readership poll on the question of whether Princess Margaret should marry Group Captain Peter Townsend was “contrary to the best traditions of British journalism”. The contempt for the Council in its early years among the denizens of Fleet Street was expressed in the response of Daily Express columnist John Gordon to a reader who threatened to report him: 

You can report me to the Press Council, Madame Tussaud’s, the Society for the Protection of Sputniks, or the Dancing Dervishes’ Association as you wish. May you enjoy yourself.

This first attempt at self-regulation was condemned as wholly ineffectual by the second Royal Commission, in 1962, chaired by Lord Shawcross. It warned that “if the press is not willing to invest the Council with the necessary authority and to contribute the necessary finance, the case for a statutory body with definite powers and the right to levy the industry is a clear one”. Shawcross did make one suggestion that might have saved self-regulation from the jibe of toothlessness, namely that the Council should take powers by contract with proprietors that would enable it to require its adjudications to be published in full and to dictate their prominence. Such contractual obligations would be enforceable by court order, and it is a measure of the obtuseness of the newspaper industry that it has always refused to adopt this approach —the only “effective” form of self-regulation. It may be offered to Leveson in a last-ditch effort to avoid statutory regulation, although it is now probably too late. 

The third Royal Commission on the Press, reporting in 1977, found evidence of “flagrant breaches of acceptable standards” and “inexcusable intrusion into privacy”. It demanded that the Press Council take more powers to ensure rights of reply and that it deliver more vigorous adjudications. But thereafter editors at every level defied and derided the Council. By 1989 a private member’s bill to set up a statutory council was well advanced, with the support of both parties, and was only halted when the government established an inquiry under Sir David Calcutt. His report in 1991 pointed out that the Press Council’s dual functions of defending free speech and adjudicating complaints were incompatible. The latter should be undertaken by a Press Complaints Commission. 

After two years of monitoring the PCC, Calcutt in 1993 firmly recommended jettisoning self-regulation once and for all, in favour of a statutory press complaints tribunal with power to injunct newspapers and to fine reckless journalists. But John Major’s government dared not antagonise the tabloids that it believed had won it the 1992 election. Despite further proposals for statutory regulation, neither the Conservatives nor the subsequent Labour government dared to act in the face of media opposition. 

It is instructive to note that the old Press Council role, as envisaged by Michael Foot, of defending free speech fell by the wayside after the PCC was established to deal with complaints. There has been no replacement either by the press or by a wider coalition including broadcasters and the new electronic media: the press has relied on its political muscle to deter governments from introducing privacy laws, and left occasional challenges in the courts to the Sunday Times, the Guardian and, increasingly, US media like the Wall Street Journal. In the past decade it has been noticeable how “the media” as such has failed to make common cause in challenging reporting restrictions in the courts or in appealing first-instance decisions which set uncomfortable precedents. It is quite prepared, for example, to demonise Sir David Eady, the judge who has set many of them, but is afraid to appeal him (most notably, News Group Newspapers Ltd failed to appeal his controversial decision in the Max Mosley case). Judges have begun to comment on this failure, and tend to perceive the media as the victim of its own negligence in failing to defend its rights. This criticism has some validity, although judges can be insouciant about the costs of litigation and seem to think that newspapers have money to burn on “test case” litigation. 

The failure of the media to defend its rights — which are, after all, the rights of the public to uncensored information — is a matter of concern. What is required is an organisation backed and funded by all sections of the media (including the BBC, which has an indifferent record in defending media freedom) to research and contest legislative changes that impact upon newsgathering, and which can intervene in court cases where media freedom is in issue. It needs to deliver authoritative counterblasts to the frequent political attacks on free speech, and to alert journalists to new laws and court decisions that impact upon newsgathering. It could also run training courses in press freedom and code of conduct responsibilities. As its role would be to protect and enhance press freedom it would not require any statutory powers and it would certainly improve the “culture” of newspapers. Its first task might be to respond authoritatively to the Leveson recommendations; there was no such body in existence to respond to the Hutton report.

It has long been the perception of researchers into the Press Council and the PCC that these bodies have been funded by media proprietors with the real purpose of staving off a law against invasion of privacy. For many years the PCC has routinely boasted in every annual report of its ability to protect privacy and raise the ethical standards of the British press:

The application and observance of the Code are part of the culture of every newsroom and every editorial office…the PCC has clearly raised standards of reporting…most activities which brought newspapers and magazines into disrepute in the 1980s have long since vanished — and the PCC continues to ratchet up standards on the back of adjudications. (PCC Annual Review, 2000.)

Boasts like this have been demonstrably idle. The PCC has no investigative powers or procedures, holds no adversary hearings and never actually monitors the press. Its Code offers only a weasel-worded right of reply to those attacked. Its claim to offer an “effective remedy” for breaches of privacy is untrue and was rejected by the European Commission in Earl Spencer’s case: “The PCC has no legal power to prevent publication of material, to enforce its rulings or to grant any legal remedy against the newspaper in favour of the victim.” The UK government did not contest this conclusion, and the European Court held that no remedy can be “effective” unless it includes compensation for victims. PCC rulings on paparazzi photographs have been wildly inconsistent, and its Code provisions against intrusion into grief and shock, chequebook journalism and payment of “blood money” are regularly breached. 

The days when the PCC was expected to provide a fig-leaf remedy to prevent the development of a law against invasion of privacy are now over. Article 8 of the Human Rights Act has permitted judges to do what they had long wanted to do, at least since Lord Bingham despaired of protecting ‘Allo ‘Allo! star Gorden Kaye from a journalist who infiltrated his hospital room while he was coming round from brain surgery, and conducted an “interview under anesthetic”. However satisfactory it may be to have a judge-made law that now gives damages to victims of such misbehaviour, Article 8 (which reads: “Everyone has the right to respect for his private and family life…”) has been allowed to trump genuine and sometimes important exercises of free speech. This is partly the fault of the European Court, with its incoherent definitions of privacy as encompassing “psychological integrity” and “a zone of interaction with others, even in public”. But it also arises from a mistake by the English law lords, who rejected Lord Scarman’s insistence that Article 10 (“Everyone has the right to freedom of expression” — not the right merely to “respect” for that freedom) would prevail over privacy considerations whenever a public interest might be served by publication. Now, courts insist on “balancing” the two rights instead of making a presumption in favour of free speech. This has had the result that subjective value judgments by the judiciary have suppressed stories of some public importance.

Thanks to Article 8, the tabloids have not only lost their battle to describe what people are like in bed, but even to report whose bed they are in — unless, like the footballer Rio Ferdinand, they can be shown to be hypocrites who do not have school-age children likely to be upset by learning of their infidelities. The impact on children of knowledge of a father’s sexually incontinent behaviour (allied to an ingrained dislike of tabloid sensationalism) now weighs in the judicial mind more heavily than the rights of a kisser to tell or the public to know. The most recent Court of Appeal case shows that we have now reached a stage where judges will ban newspapers from reporting adultery, even when they are merely recording the obvious. A prominent figure in the “entertainment business” was granted a permanent injunction against revelation of a sexual relationship, even though it was well-known within the industry. The court was impressed by the argument that his children would be upset — an argument always likely to move kind-hearted judges more than worldly-wise jurors, who may doubt whether children really run home crying from school on learning that their father is having an affair with a topless model.

Whether these judge-made developments in the law of privacy are satisfactory is debatable: the celebrities are usually male, and the free-speech rights of women they may have treated badly are overridden — or ignored (judges have ruled solemnly but illogically that a woman describing her relationship with a celebrity is telling his story, not hers). But the simple fact is that the courts now offer an effective remedy for breach of privacy by issuing pre-publication injunctions and awarding substantial damages (Max Mosley was awarded £60,000), and the PCC, which offers no injunctions and no compensation, cannot compete.  

The Leveson inquiry will doubtless recommend that Parliament legislate for a new civil wrong, enabling the courts to award damages for privacy invasion under a modern statute rather than use their loosely-defined powers under Article 8. The scope of defences will be important to the media (and not just to the press): obvious justifications should include the exposure of crime or serious impropriety, the protection of public health and safety, or revelations of hypocrisy. Under the latter test, Max Mosley (whose “Nazi sex orgy” turned out to be merely an old-fashioned British sex orgy) might still have won. But whether he had a reasonable expectation of privacy over his multiple spankings should surely have been decided by a jury and not by a judge sitting alone. Under privacy law as it has developed, there is no place for juries, and only a statute could provide the media with a right to jury trial.

Does the press want trial by jury for privacy cases, or trial by Mr Justice Eady? The new Defamation Bill severely limits trial by jury for libel, and newspaper groups cannot work out whether they are in favour. Because they abhor the idea of privacy law, they have shown little interest in its formulation, other than to complain about superinjunctions. 

One solution would be to abolish gagging injunctions — to ban all “prior restraint” — but to allow exemplary or aggravated damages to be awarded by juries if publication of genuinely private material goes ahead. This would be the solution most consonant with free speech: editors could not be stopped from publishing intimate personal details, but by doing so would take the risk of having heavy damages awarded against them if their public interest defence failed. To use the language of the Duke of Wellington, they would be allowed to publish and be damned, so long as damnation came after publication, and not before it. This rejection of prior restraint would be in keeping with US Supreme Court precedents (notably the Pentagon Papers case) and with Blackstone’s celebrated statement of the free-speech principle, now honoured by UK judges in the breach rather than in the observance:

Post-publication damages will not, of course, put the genie back in the bottle. The victim of privacy invasion will never be the same again — his or her (usually his) secret will be out, and money will never compensate for the humiliation. This is true enough, but the courts cannot perform miracles. They cannot be like King Canute, policing the electronic waves of incoming allegations about the names and information that the courts are suppressing. Do we really want Scotland Yard to spend our tax money on a “Twitter squad”, arresting those who indulge in internet speculation about the goings-on in secret courts? 

A law that made invasion of privacy a civil wrong, with damages of up to (say) £200,000 awarded by a jury, would operate in time as an effective deterrent. Jury verdicts are publicly acceptable, whereas decisions on such subjective moral issues by middle-class and usually male judges can always be criticised as unrepresentative or out of touch. 

It is not clear whether Max Mosley would have won his case before a jury (depending, perhaps, on whether they thought him a deplorable lecher or not bad for his age) but had he done so the verdict would have been much more acceptable. The point is that over time, if juries award heavy damages against tabloid intrusion, tabloids will think twice — or three times — about intruding. They will take care to ensure they have a public-interest rationale before they do it again.

The end of the PCC as a politically credible organisation was hastened by its failed inquiries into phone-hacking at the News of the World. In 2007, after the convictions of Clive Goodman, the News of the World‘s royal editor, and the private detective Glenn Mulcaire, it issued a report which accepted the newspaper’s false claim that Goodman was the only journalist to have engaged in phone-hacking. In 2009, the Guardian published evidence that the PCC had been misled: this included the notorious “for Neville” [Thurlbeck] email, the cover-up settlement with Gordon Taylor, chief executive of the Professional Footballers’ Association, and a police source which alleged there had been “two or three thousand” victims (as it turned out, there were four thousand). The PCC rushed back into the fray, with an “inquiry” of such utter naivety that the Guardian‘s evidence was dismissed as mere speculation: the practice of phone hacking, it confidently concluded, was “not undertaken by others beyond Goodman and Mulcaire” and there was “no new evidence to suggest that News of the World executives knew about Goodman and Mulcaire”. The Guardian was rapped over the knuckles for breaching the code of conduct injunction against publishing distorted or misleading information, with a story “that did not live up to its dramatic billing”. This PCC report smugly concluded:

The Commission is satisfied that, as far as it is possible to tell, its work aimed at improving the integrity of undercover journalism has played its part in raising standards in this area. It further underlines the important role that a non-statutory, flexible body such as the PCC has in adding value to the work of the legal system to help eliminate bad practice and it would be regrettable if renewed controversy over the historical transgressions at the News of the World obscured this…the Commission trusts that the value of its work in this area is something that others — notably the Select Committee, which is still examining these matters — will recognise. 

These famous last words will haunt the PCC to its grave, notwithstanding the fact that its website reads: “Please note that as of 06 July 2011 the PCC has withdrawn this report.” The Guardian story was an excellent example of public-interest journalism, which actually underestimated the extent of phone-hacking. But because it damaged the reputation of the media, and notably of News International (a substantial source of PCC funding), the Commission conducted a public-relations exercise in the guise of an inquiry. Lacking any statutory powers, or any sceptical intelligence, it failed to get to a truth that finally became obvious to the Parliamentary Select Committee in July 2011. The PCC may now consider its report “withdrawn”, but Lord Justice Leveson has said that he has to answer one simple question: “Who guards the guardians?”-a role which, on the strength of its phone-hacking report, he is unlikely to allocate again to the PCC.

Before Leveson, the PCC will undoubtedly fight its self-regulation corner. Its most sensible pitch would be to revive the Shawcross proposal and offer to make contractual arrangements whereby newspapers would agree to implement its decisions, including orders for compensation. But its past record, and the fact that it cannot promise to bring all newspapers into its disciplinary fold, are obvious objections to its continuance as a voluntary body. Not only has Northern and Shell withdrawn the Daily Express and all its other titles, but Private Eye has always refused to join. Its editor Ian Hislop has explained that he could not possibly join an organisation influenced by editors whose ethics he despises. The PCC has been beefing up the calibre of its lay representatives, of whom there are now ten as against seven editors, and could offer to reduce its press representatives even further. But the central problem remains that such an unwieldy and diverse lay body — whether it is voluntary or statutory — cannot be an effective decision-maker in relation to specific allegations of falsehoods or privacy breaches with which it should deal expertly and expeditiously. Such a body, if given statutory powers, might deliver decisions that would chill investigative journalism. A recent example is the PCC’s ridiculous decision to condemn the Daily Telegraph for using undercover journalists to elicit Vince Cable’s hostility to Rupert Murdoch at a time when he was meant to be impartially assessing the BSkyB takeover offer. The journalists (who merely posed as Cable’s constituents, which they might easily have been) obtained a scoop from the foolish minister’s mouth. If the press was forced to take this PCC decision seriously (i.e. if it had statutory powers to enforce it) public-interest journalism would be seriously damaged. 

Nevertheless, editors are too ready to characterise any statutory solution as “draconian”, or as likely to place the press under the thumb of the government. It is perfectly possible to design a system in which a press ombudsman entirely independent of government is selected by representatives of the media and relevant NGOs like Liberty and consumer groups. This person would be empowered to award compensation to victims of press malpractice and to order the adjudication to be published with a prominence equivalent to the original story, and to direct that a reasonable-length right of reply should be accorded to complainants who have been identifiably attacked. Most good newspapers and editors will agree to this in any event. An ombudsman should never be empowered to order an apology, of course, since a forced apology may not be sincere. (When Richard Ingrams was asked whether he had ever knowingly published falsehoods in Private Eye, he replied: “Only the apologies.”)

There are various permutations of the “statutory ombudsman” model, some of which might liberate newspapers (and why not other media?) from the expense and the distraction of court actions. An ombudsman, selected independently of government, could by statute be made an alternative to legal action if given power to order corrections or publications of replies and to award modest compensation to victims of privacy invasion, defamation or other breaches of the Code of Conduct which had caused damage or real suffering. Paul Dacre, editor of the Daily Mail, supported a debate on the creation of an ombudsman when he appeared before the Leveson inquiry last month. The carrot for this stick for the press would be relief from court actions for these wrongs — the statute would prevent complainants from suing for defamation or breach of privacy unless they could show malice. If compensatory damages under the statutory scheme were capped at, say, £10,000, this might actually be an advantage for newspapers, saved from the danger of damages as high as £200,000 and legal costs that are often five times higher.

The PCC, with its portentous adjudications and declarations, has in the past received a good press. The suspicion remains that editors and journalists, so quick to find fault with the performance of other public bodies, have turned a blind eye to PCC failings because they have a vested economic and political interest in fostering a public perception that it is a powerful body and an effective alternative to the courts. Now that this pretence can no longer be sustained, something more — in the form of a statutory regulation — is in the offing. Ivan Lewis, until recently the Shadow Culture Secretary, wants newspapers to have licences that could be withdrawn like broadcasting licences, and reckless journalists to be debarred, i.e. “struck off” a professional register like errant doctors or lawyers.

He overlooks the fact that journalism is not a profession. It is the exercise by occupation of the right of free speech to which all are entitled. It cannot in principle be withdrawn from a few by any system of professional registration. That sinister Restoration office of “Surveyor of the Press”, empowered to seize unlicensed presses and prosecute disrespectful journalists and printers, is no more than a distant and bad memory. 

The best result from the Leveson inquiry would be a sweeping away of all the deceptive panoply of self-serving self-regulation, with a recommendation that Parliament enact a carefully defined tort (civil wrong) of invasion of privacy, with a public-interest defence and a right to trial by jury. The media — broadcasters and electronic publishers as well as the newspapers — should be urged to make common cause by setting up a new body to defend freedom of speech at its own expense. The PCC might survive as a conciliation and arbitration service available to mediate between editors and complainants who lack the money to hire lawyers. If statutory powers are to be given to anyone (such as an independently selected press ombudsman), they should be limited to ordering the press to publish factual corrections or to allow rights of reply. That would mean curing abuses of free speech by the simple device of ordering more speech.

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