Today marks the first anniversary of the publication of the Leveson Inquiry’s report. Since then, in addition to maneuvering over a replacement for the PCC, we have seen revelations of government surveillance of the internet security services personnel in newspaper offices. In a two part series we republish here thoughts from Media Standards Trust’s Martin Moore on this time and welcome other reflections.
At the Mad Hatter’s tea party in Alice and Wonderland the March Hare upbraids Alice for claiming she can solve a riddle:
“Do you mean that you think you can find out the answer to it?” said the March Hare. “Exactly so,” said Alice.
“Then you should say what you mean,” the March Hare went on.
“I do,” Alice hastily replied; “at least – at least I mean what I say – that’s the same thing, you know.”
“Not the same thing a bit!’ said the Hatter. “You might just as well say that “I see what I eat” is the same thing as “I eat what I see”!”
“You might just as well say,” added the March Hare, “that “I like what I get” is the same thing as “I get what I like”!”
“You might just as well say,” added the Dormouse, who seemed to be talking in his sleep, “that “I breathe when I sleep” is the same thing as “I sleep when I breathe”!”
In Britain today, you might just as well say ‘The press is free’ as ‘Free the press’, or ‘the end of press freedom’ as ‘freedom to end the press’ or ‘state controlled press’ as ‘press controlled state’. So back-to-front, upside down, and misshapen has the debate about press freedom become.
On the one hand we have had a chorus of newspapers thundering about how the press Royal Charter on self-regulation of the press agreed on 30th October represents the end of 300 years of press freedom, and would allow politicians control of the British press.
On the other hand we have had many of the same newspapers accusing one of their own — the Guardian — of ‘treason’ and helping terrorists, for revealing the extent of secret surveillance by the British and US governments.
Both in principle and practice these newspapers have got the debate the wrong way round. They claim the Royal Charter represents an end to press freedom without providing evidence to support such a claim. At the same time they fail to see any danger to press freedom from the types of threats made by the government against the Guardian. Continue to mix the debate up and we will end up with a press cowed and politically compromised. But see the Royal Charter and Snowden affair for what they are and Britain could become a freer and fairer country.
The press Royal Charter has earned hundreds of column inches in the UK press in the past month. Countless leaders and news reports have intoned about the dangers for press freedom from political interference. ‘A press free from political interference is a precious inheritance’, The Times’ leader of 31st October read. The Royal Charter ‘grants politicians the right to meddle in press regulation for the first time since the licensing of newspapers was abolished in 1695’, claimed the Daily Mail. Whilst The Telegraph said that ‘The question of how our press is regulated is a question of how best to defend free speech. It is about ensuring that responsible newspapers have the freedom to publish what they wish and that the public have the freedom to read what we publish. That is why we cannot accept the current proposals for regulation by statute’.
We should take these claims seriously because, if true, they would justify the boycott of the system by many news groups, and undermine separate claims – made by Leveson, politicians, the group representing victims of press abuse, and others — that the Charter will protect press freedom and even enhance it.
So, does the Charter grant ‘politicians the right to meddle in Press regulation’, and does it in any way threaten newspapers freedom to publish what they wish, or the public’s freedom to read what they publish?
The first thing to make clear is that the Charter does not establish a regulator. It establishes a body whose sole task will be to check the independence and effectiveness of regulators set up by news organisations themselves, administering their own code of conduct. The body will base its assessment on a series of basic standards, written by Lord Justice Leveson, and copied into a schedule in the Charter. Those newspapers who have claimed the criteria were drawn up by politicians should compare Leveson’s wording with the wording of the Royal Charter. It is hard to fit a cigarette paper between them.
Politicians are explicitly excluded from the body established by Royal Charter. Further, they are excluded from the staff of that body, and from the Appointments Panel that appoints that body. Any regulator that wants to be recognised by this body is also explicitly banned from having any politicians on its Board. It is hard, therefore, to see how this corresponds to the Daily Mail’s claim that the Charter ‘grants politicians the right to meddle in press regulation’.
Royal Charters are, however, instruments of royal prerogative. As such, with most Royal Charters it is possible for privy councillors (of whom there are hundreds, including serving government ministers) to meddle. It was for this reason that an amendment was passed in the Enterprise and Regulatory Reform Act (2013) that prevents — by law — any interference in this Royal Charter by privy councillors. Again, it is hard to see how this corresponds to the Daily Mail’s claim.
What about The Telegraph’s view that the Charter jeopardises newspapers freedom to publish what they wish? No evidence is given to support this assertion, and it is hard to see what it could be based on. The Charter states that no regulator should ‘have the power to prevent publication of any material, by anyone, at any time’. Any regulator established should only have the power to offer redress to members of the public after publication. This contradicts The Telegraph’s assertion.
But what about future amendment of the Charter? This argument, which is perhaps the one made most frequently, is that the Charter provides a device that future politicians can change such that they can exert control over the press. The argument has been made more broadly than just by The Daily Mail and The Daily Telegraph.
According to these articles, this is how it might work. A future parliament, angry at the press for revealing something like MPs’ expenses, changes the Royal Charter in a way that constrains press freedom to do something similar in the future. For example, a future parliament alters the so-called ‘recognition criteria’ in the Royal Charter to include a clause preventing examination of MPs’ financial affairs.
This scenario might sound reasonable and credible. As such, it will cause sensible people who care about press freedom to worry. Except that, when examined, it becomes clear that it is neither reasonable nor credible.
This is how such a scenario would actually play out under the Charter system. If MPs were angry at the press they would first have to agree on what to do about it. Having agreed that a change in the Royal Charter was the best approach (highly unlikely, as you will see later) they would then need to convince two thirds of their number. Having convinced two thirds of their number, they would then have to convince two thirds of the House of Lords. They would then have to gain the unanimous agreement of the independent Board of the Recognition body (none of whom can be politicians). They would have to do this against a backdrop of public debate about the changes and, no doubt, many concerned voices published in the pages of national papers and elsewhere.
But let us, for the sake of argument, accept that the proposed change to the Charter passes these hurdles and the Charter is changed. What does this then mean? It means that, at the next three-year cyclical review (or at an emergency review – if the independent recognition body can make the case that one is necessary), a regulator or regulators – taking into account the change to the Charter – will have to decide whether to put themselves forward for recognition under the amended Charter criteria.
Given that the board of any regulator will include those working in the press, those with experience of the press, and independent members, it is unthinkable that they would put themselves forward if they thought the changes represented a serious infringement of their freedom to publish in the public interest. Why would they?
Assuming, therefore, that the regulator — or regulators — did not apply for recognition, then there would be no recognised regulator. The court costs incentives for participation, and penalties for non-participation, in a regulatory system would therefore disappear (since these only apply when there is a recognised regulator).
This is the failsafe that has been ignored by those in the press that rail against the Charter. It is not simply for the publishers to choose whether they join, or do not join, a regulator. It is also for the regulator to decide whether to put itself forward for recognition (as the industry’s Independent Press Standards Organisation has said it will not do). If they believe the Charter has been made too restrictive, then they can choose not to participate.
The regulator, or regulators, could then continue to do its job, without the court cost penalties or incentives of the Leveson system (in other words, essentially what we have right now). The change to the Charter, which would have needed to pass numerous democratic hurdles, and would have been years in the making, would turn out to be counter-productive, and would have no impact on the press’ ability to publish anything, at any time, to anyone. There would be no end to press freedom, no government control, no political interference.
Contrast this with an alternative scenario. Imagine that MPs are angry at the press for revealing MPs expenses and are determined to prevent it happening in the future. By a simple majority they introduce a change to the Freedom of Information Act to exclude the personal financial affairs of MPs. Or they could amend the Data Protection Act to protect the privacy of MPs’ spending. Each change only requires a majority vote in the House of Commons. The change comes into force within months and suddenly MPs can rest easy that their future purchases of bath plugs and film channel subscriptions will remain hidden from public view.
This is a real threat. This is something that could happen now. MPs can, and do, use and amend existing legislation in a way that genuinely threatens press freedom. Equally, they can turn to their existing powers and legislation already available — though not meant for journalism — to constrain and attack journalism. Continued in Part 2.
This article originally appeared in the New Statesman on 25 November 2013. It is re-posted with permission and thanks. The article gives the views of the author, and does not represent the position of the LSE Media Policy Project blog, nor of the London School of Economics.