Driven by data; ridden with liberty.
Since the announcement of the Royal Charter on Self-Regulation of the Press, the plans have been widely condemned around the world. Padraig Reidy of the Index on Censorship declared the Charter-sustained regulatory system to be “unworkable”, whilst federally-funded Russia Today described the new guidelines to be “a threat to press freedom”. The editorial of the New York Times mournfully muttered that:
It would be perverse if regulations enacted in response to [the phone-hacking] scandal ended up stifling the kind of hard-hitting investigative journalism that brought it to light in the first place.
Jill Stewart, the managing editor of the LA Weekly, said that she was “shocked and horrified” by the proposals on BBC Radio Five Live, adding that “in the United States this would be considered a crazy idea – a bad thing”. Canada’s Toronto Star said the proposed regulatory system was “as if crime victims had helped judges establish sentencing guidelines”. The National Review in the United States slammed the proposals as a “shameful compromise”, calling 2013 the end of the “the Era of the Free Press in Britain” as their headline. A commentator for that publication, author Mark Steyn, considered the grotesquery that this proposal arose under “an ostensibly Conservative Prime Minister”, noting:
Aside from the small matter of abandoning core principles of English liberty, these “conservatives” cannot even calculate their own interests.
The reaction in Britain has been no less tumultuous. The Sun has declared that the new regulator would be an Orwellian ‘Ministry of Truth’, generating a press culture of political subservience. The Daily Mail, the Sun, the Times, the Telegraph, the Daily Express and the Daily Star are all seeking legal advice about the possibility of boycotting the new regulator. The Spectator proudly said ‘No’, and Ian Hislop of the Private Eye asked “why should I answer to David Cameron?” The New Statesmen will also be boycotting any new regulator, revealing that the magazine “currently does not see its interests served by regulation designed to suit politicians, nor by a revanche regime cooked up for the comfort of newspaper barons.” The Economist also joined the opposition, noting that the regulatory scheme is “unravelling”.
The editorial in the Independent shrugs and soothes into insouciance at its peers, stating:
On balance, then, while the outlines of a newly agreed regime seem a reasonable compromise, potentially critical flaws remain. And, behind the fulminations of some elements of the press, the fact remains that a new system is worthless if the majority refuse to participate.
They are joined by the Financial Times, who reacted positively to the proposals. The National Union of Journalists gave the Royal Charter “a guarded welcome”.
In flailing support for this regulatory system by politicians, much has been made of the requirement of two-thirds supermajority to amend the Royal Charter. Such statements are usually followed by the claim that it would be very difficult for Parliament to change the charter. However, what is rarely noted is that the Royal Charter is not the keystone of this new system – the Royal Charter is merely the mechanism by which regulators are ‘recognised’. The Leveson-derivative scheme’s keystone is the change in court costs, whereby relevant publishers who are not members of a ‘recognised’ regulator faced exemplary costs, and must pay plaintiffs in cases that they win. This incentive structure was a major section of Lord Justice Leveson’s proposals, with the intention that newspapers would submit to recognised regulators. These incentives will be enshrined in law through amendments to the Crimes and Courts Bill, such as Clause 29:
(2) Exemplary damages may not be awarded against the defendant in respect of the claim if the defendant was a member of an approved regulator at the material time.
What publications are called ‘relevant publishers’, the scale of the increased court costs, and the balance of payments between publishers who do not submit to an “approved regulator” and their plaintiffs are all determined by normal legislation, and may be amended by any government at any time. There is no supermajority protection to the incentive structure that makes the Leveson proposals function.
There are two divergent definitions to what a ‘relevant publisher’ is: one from the Royal Charter and one from the Crimes and Courts Bill. The latter one takes primacy, and has what Culture Secretary Maria Miller calls “three interlocking tests”: the production of news-related material in the course of a business, multiple authors, and editorial control. Some blogs and small newspapers could pass all three tests, whilst Lord Justice Leveson believed that the internet should remain outside of his proposed regulatory system. Tom Watson MP, a former foghorn on the Culture, Media and Sport Select Committee, said:
It is clear to all but the very stupid that the new system should only apply to big media – with print operations that might also have a digital presence.
Lastly, the definition of ‘relevant publisher’ would appear to include major news organisations outside of the UK, where their content is “targeted primarily at an audience in the United Kingdom”. The sheer weight of the world will crush this new regulatory system.
It was widely reported that this proposal was forged at 2am in the Leader of the Opposition’s office – it reads like it. There are many aspects of this idea that are simply unworkable, and it has received a shocked response from the rest of the world. The liberty necessary for the press to bleach corruption in the highest offices and hold those in power to account should never be underestimated. The phone-hacking scandal was part of a criminal subculture in our press, but one that is being extinguished, and one that was brought to the world by the press in the first place. The Press Complaints Commission was never constructed to deal with such a subculture, which is the proper purview of the police. The freedom of the press, which is often ugly, often ferocious, and often feral – is vital to defend all our other freedoms.