By Eric Barendt
The Leveson Report provides a compelling case for radical reform of press law and regulation. Only the most hard-hearted of journalists, for whom in Paul McMullan’s words ‘[p]rivacy is for paedos…privacy is evil’ could fail to be shocked by the catalogue of episodes of monstrous indifference to individual digniy and privacy often shown by tabloid pressmen and editors (see the Report, Part F, chapter 6). The report highlights the impact of privacy invasion on victims and their families and the callous response of newspapers when their conduct is challenged. Ordinary people (not celebrities) may have their life and livelihood ruined as a result of a story published purely to satisfy the prurience of the public, which many newspapers cater for without regard for the consequences. All this is well documented in the Report, which also examines the dubious methods used by many journalists to obtain information and their relative indifference to accuracy. These failings are not isolated, but systemic and cultural, at least within parts of the press.
The Report rightly recommends a more independent system of press regulation, less likely than the PCC has been to give a newspaper the benefit of the doubt when resolving a complaint, and so more likely to command public confidence. The Leveson recommendations for the composition of the new regulatory Board, the appointments process, the Standards Code, and the sanctions and other remedies for breach of the Code are all sensible, and have been acccepted now by both politicians and the press itself. Just as important is the recommendation that the Board should provide an arbitration service for civil legal claims for defamation, privacy. harassment and other wrongs. At present only the wealthy can afford to bring proceedings in the High Court. An arbitration service should benefit the press as well as claimants, for newspapers would face lower costs in defending, say, privacy claims before it, while a failure by a claimant in legal proceedings to make use of the service would be taken into account by a court in awarding damages and costs. That is one of the ‘carrots’ offered the press to encourage membership of the new regulatory system.
What of the recommendation in the Report that statute is necessary for the institution of a recognition body to ensure that this new independent regulatory body is ‘satisfactory’? (see Part K, chapter 7, paras 6.1 – 6.7) This has been much the most controversial recommendation, with the press and the majority of the Conservative Party in strong opposition to it. For them the intervention of statute would overturn over three hundred years of legal history, since the abolition of press licensing in 1695. Leveson is rightly unpersuaded by the ‘philosophical objections’ (the phrase is that of Lord Black) to statutory intervention. Statute would not prescribe the terms of the Standards Code, let alone determine the contents of a newpaper or the conditions on which it could publish. It would at most set out in broad brush terms the constitution and functions of the recognition body. Further, the law would require the government to uphold press freedom, and courts would, of course, have to interpret and apply it under the Human Rights Act compatibly
with the right to freedom of expression.
What is most bizarre is that the press now seem happy to negotiate the terms of the new system with the government, rather than contemplate the introduction of legisation which would be debated in Parliament. They are even prepared to contemplate the institution of the recognition body by Royal Charter, which a government can easily withdraw or amend at a time of its own choosing. It would be much better to accept the Leveson Report’s arguments in full; the objections to any statutory underpinning of the new system of self regulations are not so much philosophical, as neurotic.
Eric Barendt is Emeritus Professor of Law, UCL