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?
Lord Justice Leveson says he has just one question to answer: "Who guards the guardians?" (Sean Dempsey/PA Wire)
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.
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