Peter Preston: ‘Leveson sees journalism as an exercise in providing cases for the courts to examine’

Press freedom, with inexorable logic, is the right to publish stories I disapprove of just as much as stories I wholly endorse.

Press freedom operates inside a very broad church. And the kind of press freedom we see in almost every democratic nation – as monitored by the Reuters Institute – works with that grain of common sense. When something is wrong, it offers a complaints mechanism and the opportunity to correct or apologise.

It does not fine or ban (unless the law is involved). It concedes, in short, that there is no perfection. Self-regulation expects slippages, because that is absolutely in the instant, ultra-competitive nature of journalism. And the moving finger always twitches on, taking every fresh incident or outrage and adjusting the governing code to try to encompass it in true This-must-never-happen-again mode.

Go through the Editors' Code we have now and, time and again, you can chart these shifts along the journey. There is no final, definitive set of rules. (See how even Lord Justice Leveson now permits some payments for information and compare that with past denunciations of cheque book journalism).

There is no final definition of the public interest. There is only a pragmatic series of changes in the light of events. And that, in its flexibility, isn’t the nature of law – any more than it is the nature of courtroom decision-making.

Thus, I increasingly feel, the entire search for some strict regulatory parameter that can be enforced by some mechanism the public can be deemed to 'trust' is wholly misguided.

Whether or not the rules are underpinned, contracted or pavilioned in statute, they will always be broken by some newspaper or other in a situation that hasn’t been visualised. And then what happens next? More sound and fury; more code tightenings; more clauses and allegations of bad faith; the whole rigmarole we know and don’t much love. But, because it’s the press, because clichés about’ last chance saloons’ haunt newsrooms, our freedom to investigate and report will become ever more circumscribed.

There is a ratchet, and you can see it working in Leveson.

Should police and reporters be able to meet and talk off the record? No.

Can newspaper executives have freewheeling conversations with politicians any longer? Don’t bank on it; and don’t bring the proprietor when you come calling.

Is an investigation in its early stages in “the public interest”? Ask the advisory board of the new commission and expect the answer “No” if the story has clear risks attached – because no regulator is going to put his job in jeopardy without exercising legal caution.

Must an extensive audit trail be organised, even in the early stages? Of course.

'There is no doubt Leveson will have a chilling effect on getting stories'

Leveson, and the kind of regulation he recommends, sees journalism as an exercise in providing cases for courts to examine. He deals in the finished article, not the trek for truth. And there is absolutely no doubt that implementing all these regulations, and more, will have a chilling effect on getting stories in the first place.

Sir Brian Leveson may believe in a free press as passionately as he vows. He may welcome – or at least not frown too fiercely on – raucous, vituperative leader columns. But he doesn’t understand where stories come from, or the lets, hindrances and perils that digging them out entails. Yet there’s no point in freedom to publish if the facts that need to be revealed are stuck in the legal mud (even before changes to Freedom of information access and the new Bribery Act chip in).

And just in case you blithely assume that only the tabloids chasing Sienna Miller afresh will be hampered in their hunt, I’ve gone through some of the old cases the Guardian took up in my day and wanly concluded that many of them wouldn’t have happened.

Jonathan Aitken? Probably Lord Aitken of Smith Square by now, living out a blameless and well-heeled existence. But now I’m getting personal again, for the story of a life in journalism is, inevitably, the story of reports you’ve prised out and run, tales that have made a difference.

The story of my life in journalism – at least for the last quarter century – is of watching, admiring and trying to help journalists overseas for whom their work is a constant, dangerous struggle. That became a preoccupation in the mid-eighties after I’d made a mistake that haunted me – and haunts me still.

Some of you may remember the case of Sarah Tisdall, the Foreign Office clerk who went to prison because she leaked details of US impending cruise missile installations to the Guardian. Most will remember the document in the case that ought to have been shredded on day two, not copied and distributed so that it couldn’t be destroyed in short order if Special Branch came calling. My mistake.

But examine that saga now in two different lights. How does Leveson see the fate of MoD papers marked Top Secret along his audit trail? Is it in his version of the public interest to destroy stolen paper-work that describes how the Government of the day will slide the details of deployment through Parliament much like a three card trick?

One judge (the brilliant Richard Scott) asked to decide, found that we had the right not to hand over the document. That was his morning’s work. But three appeal judges, sitting in the court next door that afternoon, reached a diametrically different conclusion. Their interpretation of the public interest shifted 180 degrees in 40 yards and 40 minutes (though I’m sure they’d all say that they believed in the freedom of the press).

And thus – we’re onto that second light now – asks how you feel when you’ve fought and lost a high profile case with some pretty brutal consequences? You feel sick, but you also feel alone: which is when I signed up to work and raise funds for the International Press Institute in Vienna, whose business is helping to banish that loneliness, to make journalists in trouble understand they are part of a wider community.

And the abiding point there is discovering that we are indeed a community. Only ignorance divides journalists in the wise, well-fed sheep of the First World and the goats of the Third World. In fact, as you discover the moment you go out into the one world of journalism, everything connects.

How Leveson threatens press freedom abroad

So I have friends in this connected world. Friends in Sri Lanka where a press council erected on PCC lines is one frail defence against government interference.

Friends in South Africa, where the whole Leveson process is viewed with manifest distress by editors who really do stand on the front lines of freedom – and know that the ANC is watching.

Friends in the West Indies, where Professor Pinker of the Press Complaints Commission took his travelling models for newspaper regulation.

Friends in Zambia like Fred M’membe of the Post whose experiences of an editor’s life in and out of prison are now helping write a PhD on the history of journalism’s struggle for freedom in post-colonial Africa – a history that weirdly echoes the self- same arguments beloved of Prime Ministers in Downing Street and judges in the Strand.

A pseudo royal charter in downtown Lusaka? Rule nothing out because the politicians who put secrecy and sycophancy first are always watching and waiting.

And that, in a way, is grimmest story of the lot – of the havoc we here at home, have wrought by letting a few cowboys run loose; of the damage we inflict on my friends – my friends – abroad when we do.

'Journalism doing its job will always throw up messy conundrums'

It’s a sad tale of myopia and insularity. It’s also a challenge to look both wider and deeper. So lock the supposed culprits up if they’re guilty, by all means: that’s what the law is for. But don’t make it easier for the next generation of crooks and shysters to get away with it, because that would be pure tragedy.

If you view the essential interface as one where the press intrudes or overshoots and the object of their endeavours are victims, then the debilitating debate can never end – because journalism that’s doing its job will always throw up messy conundrums. Statute or the threat of statute will always be invoked. But that’s not the real world we live in – a world where, largely unremarked, the Legal Services Ombudsman is spurred into action over 7,000 times a year, chivvying slow-moving, incompetent or rapacious solicitors. In this world, we expect no perfection.

Our lone best hope is a steady, tolerable state. Our aim is to keep things under control rather than spiralling away. That’s the reality before, during and after Leveson. It’s the one that fits the press rather than mires it in constant confrontation with higher authority, a war waged in the name of a public which seems more tolerant than you’d expect, because it keeps buying the papers. And, personally, it’s the one I embrace.

This piece is an extract from Peter Preston's chapter in After Leveson? The future for British journalism, edited by John Mair, and published by Abramis.