Gillian Phillips, Director of Editorial Legal Services, The Guardian
FLJS debate points way forward for Leveson reforms
The Foundation for Law, Justice and Society revisited the contested issue of media law and the regulation of the press on Friday by hosting a workshop to examine the Leveson Report into the culture, practices, and ethics of the press and the draft Royal Charter to implement Lord Justice Leveson’s reforms.
The workshop, entitled Media Law after Leveson was held at the University of Oxford Law Faculty, and saw leading figures from the law and the press debate with academic experts to cut through the political rhetoric surrounding the debate and offer an in-depth legal analysis of the principles underpinning the proposed reforms.
Hugh Tomlinson QC, the leading media lawyer and prominent representative of Hacked Off, opened the debate, arguing that, “The media through a series of secret meetings and privileged access to ministers have managed to negotiate a watered down version of [Lord Leveson’s] recommendations.”
He characterized the Leveson saga as a battle between powerful actors in the press and political classes, observing that, despite large majorities amongst the public and politicians in support of Leveson’s recommendations, “the media have managed to conduct a campaign of outrageous and barely believable misinformation to fight the opposition forces to a standstill.”
The opening session of the day was chaired by Damian Tambini of the Media Policy Project at LSE. Tom Gibbons from Manchester University began the discussion by exploring the issue of trust between the press and the public. From the starting point that trust is even more important in the age of internet journalism, he argued that the Leveson proposals may in fact undermine efforts to restore this trust, given the coercive element of efforts to ensure all news organizations subscribe to the new system of regulation. Instead, he advocated an approach in which journalists would be encouraged to develop, articulate, and promote their own standards through a regulatory framework which protects them from the industry itself and the detrimental pressures of the twenty-first century newscycle.
Lara Fielden, Visiting Fellow at the Reuters Institute and formerly of Ofcom and the BBC, followed with her assessment of the three touchstones of press regulation set out in the Royal Charter: that it is voluntary, independent, and self regulatory. Encompassing a comparative review of international approaches to press regulation and attempts to incorporate new media into a regulatory framework, she argued that, since, in the public interest and in the interest of democracy, we grant the media special privileges, “In return, we expect those who hold power to account to account for the powers granted them.”
The session was closed by Eric Barendt from University College London, who drew the distinction between Leveson’s “overwhelmingly convincing” rejection of the media argument against statute, and what he saw as the less satisfactory positive argument for statute. Citing organizations including Private Eye, the New Statesman, as well as the Financial Times and others which may not join the scheme without statutory enforcement, he foresaw potential stumbling blocks to the implementation of the Leveson reforms, yet remained unequivocal in his concluding observation that “the media’s objections to Leveson are not so much philosophical as neurotic”.
Issues of data protection and the protection of sources were the subject of the next session, opened by David Erdos of the Centre for Socio-Legal Studies. He addressed the role of the Information Commissioner’s Office (ICO) in implementing aspects of Leveson’s proposals, predicting that in the wake of the Leveson Report, it would become increasingly untenable for the ICO to avoid the increasingly pressing issue of regulation of new media, exemplified by influential bloggers such as Guido Fawkes.
Damian Carney of Portsmouth University moved the spotlight from data protection to the protection of journalist’s sources, which he explored with reference to the police’s attempt to search the News International premises as a result of the phone hacking undertaken there, only to be told that the action was unlawful due to the confidentiality of their sources, and escorted off the premises in what was described as a ‘Mexican standoff’.
In the afternoon, Jacob Rowbottom from the Law Faculty in Oxford tackled the problem of the cosy relationship between politicians and the press exposed by the Leveson Report. He argued that Leveson’s central proposal of increased transparency through disclosure of private meetings is in fact more likely to further erode public trust in politicians and the press. He identified the power given to ministers to intervene in media mergers as an area of particular concern in terms of media lobbying, proposing instead that this power should be removed from the Minister to an independent body less likely to be subject to undue influence.
Paul Wragg from Leeds University focused on the role of press partisanship in the Leveson Report, which he saw as being intrinsically valued without sufficient justification in terms of the democratic benefits it may bring. He explored two cases of excessive criticism and disproportionate reporting by the press despite minimal public interest elements to the stories, including the Daily Mail journalist’s Richard Littlejohn’s criticism of Lucy Meadows, a teacher who underwent gender reassignment, and who was found dead days after complaining of press harassment. Wragg expressed his scepticism that the Leveson reforms would prevent this kind of reporting in future or any broad cultural changes in the ethics of the press, partly as a result of Leveson’s “missed opportunity” to unpack the issue of press partisanship which he saw as unjustly ‘sanctified’.
The former Appeal Court judge Sir Stephen Sedley chaired the final session of the day, which addressed the justification of journalistic practices in the name of the public interest. Rachel Craufurd Smith from the University of Edinburgh began the session by striking a note of caution about the possible adverse consequences of press regulation, arguing that, where the press are acting in the public interest, they must be free to do so without legal repercussions. She explored the difficult balance of ensuring the press act in the interests of the public and democracy, whilst guarding against the threat of any chilling effect the Leveson proposals may have on investigative journalism, arguing that we must accept that sometimes the press may get things wrong.
Gavin Phillipson of Durham University took a far more hardline view of the press response to Leveson, arguing that the media had distorted the notion of press freedom in order to free themselves of any regulation and to act with impunity, rather than to preserve the industry from what it had characterized as state censorship. He criticised sections of the press for repeatedly publishing known inaccuracies if it serves the editorial line, and attacked the media defence of invasions of privacy in the pursuit of celebrity gossip, which some editors have argued is necessary to sell papers and effectively subsidise the less popular investigative journalism and to preserve media plurality.
Andrew Scott from LSE took a different approach by assessing the effect of the Bribery Act on the practice of chequebook journalism, or payment of sources. Lord Justice Leveson in his Report stated that journalists faced with prosecution under the Bribery Act would be protected if acting in the public interest, through judicial discretion and a host of other defences, yet Scott sounded a cautionary note, arguing that since this prosecutorial discretion is based on evidence from the police, their investigation in itself is chilling of investigative journalism.
The debate was brought to a close by Gillian Phillips from the Guardian, who reiterated the potential risks of the Leveson reforms in her remarks, which served to redress the prevailing emphasis of the previous sessions. She argued any regulatory framework should err on the side of caution in order to avoid negative effects on responsible news organizations. Moving from the substance of the reforms to the effect of the current stalemate between press and politicians, she observed that “press regulation as things stand is a mess” and made an urgent plea for clarity: “what we’ve got at the moment is an enormous amount of uncertainty, which is not good for a vibrant press”.
The debate forms part of the FLJS programme in Regulation, and follows an event on media regulation held last year, policy briefs from which can be downloaded from our Publications pages.
Podcasts and Opinion Pieces from the debate will be available in the next few days and policy briefs by participants will be published over the coming months.
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