Statutory regulation of the press will hurt free speech

Self-regulation is the only way to ensure that journalist don't end up with less of a right to free expression than anyone else.

Between the Leveson Inquiry and the crisis at the BBC, it seems journalism is all we ever read or hear about these days.

These crises are heightened because journalists are, essentially, gossips who like talking about journalists. In this, we’re no different from people in any other line of work: programmers talk about other people’s code, plumbers slag rivals’ work - it’s human.

Note I wrote “line of work” rather than profession. That’s because it is very, very important to remember that journalism is not and cannot ever be a profession.

This is at the very heart of the debate over what Lord Justice Leveson should conclude from his findings when he reports in the coming weeks. Can you legally force journalists to behave in a certain way without damaging free expression?

Some point to regulatory bodies such as the Law Society or the General Medical Council, and say that regulation does not affect those professions. But think. One can strike off a doctor or a lawyer - how does one strike off a journalist? Sure, you can sack her, but what if she starts a blog? Starts making phone calls? Starts covering stories?

How do you stop people doing journalism? The old distinction will become ever more blurred as we all now carry publishing apparatus in our pocket. Journalists in the traditional sense had desks, telephones, expense accounts and bad habits. But most importantly, access to a printing press and means of distribution. A decent smartphone carries all this in one (apart from the expenses and habits).

Journalism is one way in which people can exercise their right to free expression, and the danger with statutory regulation is that one can actually create separate levels of access to a right - giving the journalist less of a right to free expression than anyone else. That’s not how rights work.

Some will point out that there are many “statutes” that apply to journalists, and this is true, but these statutes - contempt, libel etc, do not apply just to journalists - they are universal.

Creating a new law governing the press compromises that universality.

Many point to the “Irish model” as an example of statutory underpinning. But this is not entirely correct. The Press Council of Ireland was already established before it was recognised in statute, and then only with membership as a mitigating factor in a libel defence. It was not established by statute. (Bear in mind, by the way, Leveson watchers, that it took five years of negotiation to set up the Irish Press Council. This may go on for some time.)

Meanwhile, Germany (in terms of market size, possibly a better example for the UK) does not even permit specific laws on the press.

A press regulator cannot carry legal compulsion. Politicians already try their hardest to influence newspapers, and allowing them to create statute that will rule over the press will almost inevitably prove too tempting for a parliamentarians fed up of their eternal role as lamposts to the press’s dogs (as HL Mencken had it). Statute specifically dealing with the press will hurt free speech, no matter how much its advocates say it won’t.

Politicians already try their hardest to influence newspapers. Photograph: Getty Images
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Mister Lizard is not at home to bailiffs – he is eating salmon pâté by the river

Why is it that when people answer the question “What’s the worst thing anyone’s ever said to you?” in the Guardian questionnaire they never say, “You’ve been served”?

Summer’s nearly over. I look at the angle of the sunlight as it strikes the back terrace of the Hovel. I have been here long enough to use the terrace as a gnomon marking the passage of the year. I need, like the protagonists of Withnail and I, to go to the countryside to rejuvenate.

Last week when the Perseids were meant to be in full flow I asked frantically on a social medium for people to chum me along on a midnight walk on Hampstead Heath. In the end my new friends A— and her husband, C—, together with his new friend (whose initial I have forgotten, but he is Australian, if that helps), stepped up to the plate and after a couple at the Flask we went on a wide-ranging tour, which was a bust as far as seeing meteors – or my favourite tree – went, but was still hugely enjoyable. At about 2 am they packed me into an Uber and I went home happy, but I still felt as if I could do with more countryside.

The next few days made me even more anxious to get out of London. There are ominous signs that some serious roadworks are going to be taking place outside my bedroom window any day now. A bailiff came and rang the doorbell and I didn’t have the heart, or the nerve, to say that Nicholas Lezard was not at home at the moment and, is, in fact, on a walking tour of Patagonia now I come to think of it, due back some time next year. I just took the piece of paper into my hands as if it were a chicken come home to roost.

The previous day, presumably the same bailiff had come round and asked if Mr Lizard was in, and my housemate gallantly – and quite truthfully – said “no”. (Why is it that when people answer the question “What’s the worst thing anyone’s ever said to you?” in the Guardian questionnaire they never say, “You’ve been served”? Maybe it’s because they haven’t ever been.) In addition, as I said last week, the cleaning lady is on holiday and the Hovel is starting to look distinctly seedy.

So, then I get a call from a person who once featured quite prominently in this column, some time ago. This person is bored and wants me to go to his or her town and alleviate his or her boredom. This person and I parted company in circumstances that were far from ideal some time ago, and only recently have diplomatic relations been resumed.

It is too late, I say, for me to get on the train now; but when I have reviewed the book I am meant to be reviewing, I will hop on the train tomorrow around noon. And so I do, despite some monkey business from the departures board at King’s Cross, which tells passengers the 12:44 has been cancelled, then hasn’t been, then has, then hasn’t after all, while the 12:14 has slipped away like a thief in the night without telling anyone it was doing so.

I wonder if my return to the town of ——— is wise. As a dog returneth to its vomit, so doth a fool return to his folly. And the burnt hand fears the fire. Look, I say to myself, all we’re doing is going to have a picnic by the river. As we buy our supplies, the stallholder at the market asks if I am my companion’s husband. “No, he’s my picnic buddy,” he or she replies. “Never heard it called that before,” says the stallholder.

And the day passes perfectly pleasantly. We have two bottles of wine, cheese and smoked salmon pâté with crusty bread. People in punts drift past us, with varying degrees of competence. I remember it is A-level results day and call the eldest boy to ask how he’s done. He’s done well enough, it turns out, to get a place at university, though he feels obliged to point out that his results came in exactly a year ago. This is the kind of thing that happens when the number of children you have exceeds your mental bandwidth.

Later on, a porter from the college behind which we are picnicking asks me if I am a member, or an alumni. “Alumnus,” I correct him gently, hoping that this should establish my credentials. He asks for my name, and he radios the porters’ lodge to check my veracity. For some reason it takes him several goes to get my name right.

One of these goes is “Lizard”. We offer him some cheese, but he refuses, on the grounds that he has just had a banana and a cup of tea. I could live in a guest room here, I reflect, at not much higher rent than one pays in London. And the beauty of it is that the police, and presumably bailiffs, have to ask permission to go through the gates. 

Nicholas Lezard is a literary critic for the Guardian and also writes for the Independent. He writes the Down and Out in London column for the New Statesman.

This article first appeared in the 25 August 2016 issue of the New Statesman, Cameron: the legacy of a loser