“Statutory” is not a bogey word

Why statutory regulation of the press is itself neither a good nor a bad thing.

In a striking passage in his essay On Prejudice”, the great pamphleteer and critic William Hazlitt noted:

Defoe says, that there were a hundred thousand stout country-fellows in his time ready to fight to the death against popery, without knowing whether popery was a man or a horse.

In the current debate about press regulation, one gets the sense that the word “statutory” also has the same sort of bogey quality as “popery” did for Defoe’s stout country-fellows.  

There may not be a hundred thousand stout fellows decrying the prospect of menacing statutory provisions, but there are certainly are those who are against “statutory” regulation regardless of what that would actually mean in practice.

For some, it is as if just saying that regulation will be “statutory” is enough to discredit any proposal by itself.

But what does “statutory” actually mean, and is it necessary something of which one should be scared?

All “statutory” means is that a regulatory regime has some basis in an Act of Parliament. It may well be that the statute merely gives legal personality to a regulator, allowing it to hold property and enter into contracts as a corporation (and thereby employ people). But it can also mean that specific and residual powers for that regulator are set out in statute, including perhaps the powers to obtain information or impose fines. It all depends on what the statute says.

What “statutory” does not necessarily mean is that either government or parliament will have any control or influence over the activities of a statutory body.

Unless the Act of Parliament formally allows for such a role for politicians or departments, a “statutory” regulator can be just as independent (if not more so) as one based on contract or consent.

Unless a regulator has a statutory basis for its powers, the effectiveness of the regulator is entirely at the behest of the regulated. The regulated are then free not to comply with a non-statutory regulator (which in respect of the press is called the “Desmond problem” after the proprietor of the titles who withdrew from the Press Complaints Commission).

And a regulator without statutory powers is impotent when faced with a lack of cooperation: compare the refusal of News International to provide information to the PCC when the hacking scandal first broke with News International’s ready compliance with the statutory powers of the Leveson Inquiry (for example in the Nightjack case).

Almost every profession has a regulatory regime based in statute or a similar legal instrument (such as a Royal Charter). This includes professions which emphasise their day-to-day independence from the government of the day, such as lawyers and the police. “Statutory regulation” does not, by itself, mean either government control or parliamentary supervision; indeed, statutory provisions can entrench independence from wrongful interference by the politically powerful. In this way, statutory regulation can provide a shield as well as a sword.

Some journalists say that there is no place for any statutory regulation of the press whatsoever: the newspapers are there to hold MPs to account, the argument goes, and they cannot properly do this if they are subject to any control enacted by MPs.

However, this view is misconceived, as journalistic activity is already significantly regulated by statute, from the Contempt of Court Act and the Magistrates’ Court Act to the Data Protection Act and the Computer Misuse Act.

Indeed, the current edition of McNae’s Essential Law for Journalists lists over 85 statutes which can be applicable to a working journalist.

It may well be that some of these laws could be repealed or amended; but a journalist who does not believe themselves already regulated by statute is unaware of the legal context of what they do.

Accordingly “statutory” does not need to be a bogey word. And to sneer at “statutory” regulation, or be alarmist about it, is not enough to undermine it. The important question is what is being done with the statute.

And this also means “statutory regulation” is not necessarily a good thing either. The soundness of any regulatory regime for press will come down to how it will affect the behaviour of the regulated from that which would occur without regulation. A statutory power to obtain evidence or impose a sanction does not by itself mean a better outcome. Those in favour of a better newspaper industry cannot treat statutory regulation as a panacea. Black ink in a statute book is not enough to improve the culture which tolerated tabloid excesses.

As Lord Justice Leveson prepares to issue his Inquiry's report, the debate over press regulation risks being derailed by bluster and misdirection by vested interests.  The crucial thing is whether any proposed scheme actually works, and in what ways. And this is the case whether one thinks “statutory” to be a basis of legal power or a horse.

 

Some non-scary statute books today (pic: David Allen Green)

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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Despite his “strong female leads”, Joss Whedon's feminism was never about real women

Many men in TV and film praised for their powerful women are still writing with the male gaze.

Kai Cole, the ex-wife of Joss Whedon, has written an essay alleging that the director isn’t quite the feminist he appears to be. Colour me unsurprised. There’s only so much good-guy posturing a feminist can take before she starts to become a little suspicious.

It’s not that I’ve any particular beef with Buffy the Vampire Slayer, nor that I think men shouldn’t speak out against sexism wherever possible. But I’ve long harboured a mistrust of male directors – Whedon, Woody Allen, Pedro Almodóvar – who gain a reputation of being “good at doing women”. Who are they, these magic woman-whisperers, who see through woman’s childlike, primitive exterior and coax out the inner complexity? How do they manage to present women, these blank, mysterious objects, as actual human beings?

True, these men are working against a backdrop of extreme sexism, in which film dialogue is dominated by males, while females become increasingly silent as they age. Perhaps one should be grateful to anyone who allows a female character to have some glimmer of an inner life, let alone exist beyond the age of 30.

All the same, I can’t help feeling this isn’t enough. We all know the joke about the male feminist who walks into a bar because it’s set so low. It’s all too easy to be “good at doing women” when all it takes is granting female characters the same desires and contradictions we’d grant to any other human being.

Women are not a specific type of puzzle for mankind to solve. The idea that it should take some noble, generous leap of imagination to empathise with us is an excuse men have been using to mistreat us for millennia. When responding to us as though we’re actual human beings – or at least, as though an interesting Real Woman subset of us are – becomes a USP, we should all be worried.

Whedon did go a little way to addressing this in his 2006 acceptance speech for an Equality Now award, in which he mocked the way in which he was constantly asked: “Why do you always write these strong women characters?”:

“Why aren't you asking a hundred other guys why they don't write strong women characters? I believe that what I'm doing should not be remarked upon, let alone honoured.”

If this sounds a little like a humblebrag, it can probably be excused. What’s harder to excuse is this idea that a man who boasts of surrounding himself with women like his mother – “an extraordinary, inspirational, tough, cool, sexy, funny woman” – is doing womankind a favour.

I’m glad you appreciate your mum, Joss, and that you apparently don’t feel threatened by other women like her. There’s a fine line, though, between valuing women and presenting them with a whole new list of impossible standards to live up to. This is why I could never quite buy into the liberatory potential of Buffy. There’s nothing impressive about a man failing to be intimidated by his own strong girl fantasy.

In E T A Hoffmann’s 1816 short story The Sandman, the hero Nathanael falls in love with Olimpia, a doll whom he believes to be a real woman. Once the truth is exposed, the men around him become concerned that they, too, may have unwittingly fallen for automata:

“Many lovers, to be quite convinced that they were not enamoured of wooden dolls, would request their mistresses to sing and dance a little out of time, to embroider and knit, and play with their lapdogs, while listening to reading, etc., and, above all, not merely to listen, but also sometimes to talk, in such a manner as presupposed actual thought and feeling.”

There’s something about the director who’s “good at doing women” that reminds me of this. There’s a recipe for dropping in just the right number of quirks, inconsistencies and imperfections to create a Real Woman Character, without making her so unsexy as to be instantly distinguishable from your Hollywood doll. It’s not that her actual thoughts and feelings matter; it’s all about where she’s positioned in relation to you.

As Sophia McDougall noted in her excellent essay on Strong Female Characters, male characters have complex personalities as a matter of course; female characters, meanwhile, are occasionally permitted to be strong, hence anomalous. The more nuance we see, the better. Even so, I’m tired of the veneration of men who fetishise Real Womanhood just as much as others fetishise the plastic variety.

According to Whedon’s ex-wife, the director’s declared feminist ideals never filtered through into real life. Whether this is true or not, this would be understandable. Real Women are not the same as real women. Equality isn’t a matter of men feeling “engaged and even attracted” to a more diverse range of females. It isn’t about the male gaze at all.

Whedon’s final response to the “why do you always write these strong women characters?” question – “because you’re still asking me that question” – has been seen by many as an explicitly feminist statement. But perhaps all it really meant was “because there’s still a gap in the market”. Because men will always find ways to benefit from other men’s sexism. If Real Women didn’t exist, some man out there would have to invent them. 

Glosswitch is a feminist mother of three who works in publishing.