Expert panel deliver proposals for Leveson and future reform of UK media

23 May 2012

The Foundation for Law, Justice and Society entered the debate on the future direction of the UK media in the wake of the phone hacking scandal, with a panel discussion assessing the progress of the Leveson Inquiry and the relative role of the law and regulation in raising standards of the press. The panel discussion, entitled Redirecting Fleet Street: Media Regulation and the Rule of Law was held at Wolfson College on 18th May, and featured media experts and senior figures from journalism, policymaking, and the law.

Martin Moore, Director of the Media Standards Trust, opened proceedings with a sobering account of how pervasive journalistic wrongdoing has been, extending far beyond the News of the World's phone hacking, as revealed by Operation Motorman.

Describing the Information Commissioner's Office investigation into the huge cache of government data that had been sold by police and public officials, and subsequently passed on to over 300 journalists by the private investigator Steve Whittamore, it became clear that journalists from several non-News Corporation organizations were involved, that there had been 'willful blindness to wrongdoing, and that the UK press accountability systems had comprehensively failed to hold anyone to account for 'industrial scale' illegal information gathering.

The next presentation by Lara Fielden, formerly of the BBC and Ofcom and currently visiting fellow at the Reuters Institute, took on an issue that has been consistently raised by the Leveson Inquiry but not yet adequately addressed - that of the exponential rise of online news sources, which would appear to defy any attempt at regulation. She argued instead that the current debate on press regulation cannot be isolated from other media, given the increasing convergence of content as newspapers, broadcasters, and other online content become increasingly indistinguishable.

Drawing comparative perspectives from Ireland, where press regulation is recognized in statute; Denmark, where co-regulation is employed; and Canada, where 40% of newspapers have opted out of the self-regulatory system, she presented a new model for media regulation to address consumer and citizen's interests.

Proposing a radical new structure for media regulation across platforms, she advocated an incentivized, three-tier model of regulation in which media outlets can demonstrate commitment to ethical standards through a kite mark system that also empowers the consumer to make informed, democratic choices.

A different approach was taken by the media lawyer Mark Stephens, who has both represented hacking victims and been a victim of phone hacking himself. He questioned whether we need to bolster regulation at all, given that the law is the foundation for regulation and criminal charges will undoubtedly be brought against wrongdoers in the phone hacking scandal.

Identifying a clash between the libertarian theory of freedom of speech and the social responsibility theory, he pointed to both the timid and inadequate response of those bodies currently charged with regulating the press, and the fact that media organizations may move overseas to circumvent regulation, as evidence that more regulation is not the answer.

The political philosopher Baroness Onora O'Neill challenged over-reliance on the law by arguing that legal action to defend against cyber bullying and 'poison pen' attacks, for instance, is often unaffordable for the average person. Her thesis did concede that, whilst it is possible to regulate speech acts such as bullying, hate speech, and fraud, it is not possible to regulate content.

Citing John Stuart Mill, she argued that, whilst the European Convention on Human Rights enshrines freedom of expression, this applies to individual 'self-affecting acts', and therefore cannot be applied equally to multinational media corporations with a huge degree of influence on public opinion.

Instead, Baroness O'Neill reframed the question to argue that freedom of expression includes the freedom to receive credible, trustworthy information, and the journalist's duty to the reader requires that the press should be subject to the same demands of transparency as politicians and other forms of industry in terms of disclosure of conflicts of interest.

The relationship between politicians and the press has come under increasing scrutiny in recent months, and it was these structural issues of media power that were addressed by Damian Tambini of LSE in his talk on the policy reforms to emerge from the Leveson Inquiry and issues of media ownership and pluralism. He argued that both Vince Cable and Jeremy Hunt were given too much ministerial discretion over the decision of whether to refer the proposed BSkyB merger to the competition commission.

He acknowledged the difficulty of creating a justiciable measure of media influence to aid quasi-judicial decisions about acceptable levels of media plurality, but defended the necessity of strong media merger rules, since even in an age of seemingly overwhelming digital choice, theorists such as Cass Sunstein and Manuel Castell have shown that Internet-driven plurality does not increase the plurality of news sources.

While we may still be some way from determining the proper balance of media influence, in the final session of the day, Professor George Brock, Head of Journalism at City University and former Managing Editor of The Times, presented a persuasive proposal for balanced reforms to create a more effective, incentivized basis for non-statutory regulation, alongside strengthened legal defences to protect good journalism.

Arguing on the one hand for a revised privacy law and a stronger legal definition of what is in the public interest, Professor Brock demonstrated that self-regulation can then be made to work by restricting access to a public interest defence to newsroom editors who can demonstrate high ethical standards throughout their newsroom. These standards would include greater transparency, responsiveness to complaint or correction, ethical codes incorporated into journalists' contracts, and disclosure of potential conflicts of interest.