A third way for Leveson – plotting a path between freedom and privacy

George Brock is head of journalism at City University London

A phoney war of words is being fought over Lord Leveson’s inquiry into the press well before the judge has recommended anything at all. Is Leveson’s choice on future regulation really a simple one between a tougher regulation system backed up by new law and a revamped version of the self-regulatory Press Complaints Commission?

It isn’t and it needn’t be. There’s a third, better way.

Like many people, I think that Leveson will probably suggest independent press regulation backed by statute. But this prescription is going to run into trouble. Not because the volume of opposition will be deafening – no doubt it will be – but because the issues of who to cover in the new system, how to enforce it against resistance and how to pay for it are a headache any government would like lie down and avoid.

There are risks in underpinning press regulation with statute and they can be avoided if law and regulation are fitted together differently. If and when Leveson’s well-intentioned scheme runs into the sand, let it be remembered that there are other options. Here’s one.

The inquiry was triggered by the phone-hacking scandal, but it has tapped into larger and wider worries about the media, law and privacy. Similar inquiries have deliberated recently in South Africa, New Zealand and Australia; the dilemmas are everywhere the same. Online media cross borders with ease. Laws have not always kept pace with information which is moved between individuals in such a fluid and frictionless way.

Much of the evidence heard by Leveson boiled down to invasions of privacy. Their seriousness varied but some were indefensible. Press freedom and privacy are rights which in an open society must sometimes collide: they cannot be fully reconciled and must be balanced. Mediating this clash more effectively is the key to constructive bargain between law and self-regulation, between carrots and sticks.

The bargain would have four main elements:

A more effective privacy law than the fuzzy muddle of the Human Rights Act. Quite apart from limiting some reporting of no value (even if it is of interest), a more effective law will eventually be needed because digital technology has now empowered both individuals, companies and governments to capture and distribute private information to an unprecedented degree.
A new privacy tort, as well as other civil and criminal laws which touch on the disclosure of information (such as libel), must have consistent and robust public interest defences written in. These protect good, inquiring journalism now, but are written into some laws and not into others. Courts would thus be allowed to give consistent latitude to methods used to obtain information if the disclosure is genuinely valuable.
Allow a court which is presented with a public interest defence to take into account the editorial integrity and record of the publication (online or print, of whatever size) concerned.
Issue guidelines which make clear that editorial integrity is not established merely by a vague statement of good intentions. A newsroom which wants to establish its credentials will need to follow a code of conduct supervised and enforced independently and to allow a high degree of transparency. This is the part of the package which would aim to drive up standards and accuracy. Most publications face legal challenge sooner or later and most would have a strong incentive to join such an organisation. This would be self-regulation, but in a framework which would prevent capture by the news media.

One other legal reform would be needed to ensure that reform helps the widest range of people to pursue justified complaints. Claims for libel and for invasion of privacy need to be processed and decided both more quickly and cheaply than at present. Making legal remedy more accessible has happened in other areas of law and can surely be made to happen in media law.

Now put these interlocking elements together and re-run in your mind the recent history of the defunct News of the World, a paper which was frequently in court. Many of its stories might not have passed a public interest test; but some did. If the paper’s editor could only make a public interest defence stand up in court by being seen to treat standards seriously, that editor would have ensured that rules (not to mention law) weren’t broken. An editor is in a far better position than a regulator to enforce codes of conduct. Under these proposals, keeping the rules would be the key to winning more cases in court.

These would not be easy change to make. Editors and lawyers quail at the prospect of having to define privacy and the public interest for the statute book. But debate about press standards ought to be focused on a comprehensible and useable privacy law and on a public interest test which helps to distinguish journalism which deserves some legal protection from journalism which doesn’t.

George Brock is Professor and Head of Journalism at City University London. He worked previously for The Times, including as Managing Editor. A fuller version of this argument is in his 18 July 2012 statement at www.levesoninquiry.org

Topics in this article : Leveson