What to look out for in the Leveson report

From governance to sourcing, David Allen Green outlines five key issues in the report into press practice and ethics.

One: Governance

A great deal of the evidence before the Leveson Inquiry was about how newspapers were organised internally and how such arrangements facilitated or discouraged bad press practices. 

Accordingly, it will be intriguing to see how report will deal with the respective roles of editors and “managing editors” and those who oversee them.  How do you tame an autocratic editor? 

Two: Sourcing of news

The Leveson Inquiry was not really that concerned with the ultimate publication of news reports (and it deliberately did not deal with issues such as defamation).  But it was very interested in how news stories were sourced, and in particular the relationship between reporters and private investigators and other “commercial” sources.  Here it will be interesting what the report recommends to stop any illegal and unethical trade in private information.

Three: Relationships with police and public officials

What is the appropriate relationship between the media and police officers and other public officials? 

Clearly any suggestion that sourcing stories from police officers and other public officials  on a cash basis will be unacceptable.   But that leaves open the question of what should be the way journalists can properly exploit “official” sources.   Only the naïve would say that there cannot ever be any direct contact: it would be unfortunate and unsustainable to expect the news media only to use (often obstructive and uninformative) press offices. 

Four: How politicians and the press influence each other

What, if anything, can be done about the eternal tug-of-war of politicians and the press seeking to influence each other?  What sort of access should proprietors and editors have to ministers?  The Leveson Inquiry heard evidence on this point from many former senior ministers, and also from editors and proprietors themselves; but it remains unclear what, if anything, can be done to address such Realpolitik.

Five: Can regulation really make a difference?

Politicians and newspaper editors routinely call for new legislation.  In political speeches and leader columns, MPs and editors clamour almost daily to bring in some new statutory regime for something or other.  In contrast, lawyers tend to be naturally sceptical of the efficacy of any new laws.  Every solicitor and barrister will have their own examples of how a well-meaning provision did not have the intended consequence or was deftly circumvented: regulatory failure is not unusual.

Accordingly, the key question for the Leveson Inquiry is not so much the form of any regulation, but whether it can make any positive difference to the culture and practices of the press.  If there is to be regulation, it is difficult to see how it cannot have some statutory basis: otherwise, it will be regulation at the behest of the regulated, an approach which simply failed with the Press Complaints Commission regime.

But there is a problem for the Leveson Inquiry in respect of “regulation” which is more difficult to solve than as to whether it will have any statutory basis.  Before the rise of the internet, it was easy to identify who would be subject to any media regulation, as it was only a few entities which would be capable of publishing or broadcasting the news on a regular basis.  However, as now anyone with an internet connection can publish what they want to the world, how does one define who should be subject to the more onerous and restrictive burdens of being regulated? 

And if a non-regulated entity can publish what it wants (subject to the law of the land), then any sector-specific regulation would surely be futile in practical terms.  All because you think something should be regulated, it does not always mean it can be regulated.  It may well be that the internet will succeed where the alarmist hyperbole of the newspaper industry has failed, and rendered ineffective any way the press can now be regulated. 

 

David Allen Green is legal correspondent of the New Statesman

Fleet Street. Photo: Getty

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.)

Photo: Getty
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The UK press’s timid reaction to Brexit is in marked contrast to the satire unleashed on Trump

For the BBC, it seems, to question leaving the EU is to be unpatriotic.

Faced with arguably their biggest political-cum-constitutional ­crisis in half a century, the press on either side of the pond has reacted very differently. Confronting a president who, unlike many predecessors, does not merely covertly dislike the press but rages against its supposed mendacity as a purveyor of “fake news”, the fourth estate in the US has had a pretty successful first 150-odd days of the Trump era. The Washington Post has recovered its Watergate mojo – the bloodhound tenacity that brought down Richard Nixon. The Post’s investigations into links between the Kremlin and Donald Trump’s associates and appointees have yielded the scalp of the former security adviser Michael Flynn and led to Attorney General Jeff Sessions recusing himself from all inquiries into Trump-Russia contacts. Few imagine the story will end there.

Meanwhile, the New York Times has cast off its image as “the grey lady” and come out in sharper colours. Commenting on the James Comey memo in an editorial, the Times raised the possibility that Trump was trying to “obstruct justice”, and called on Washington lawmakers to “uphold the constitution”. Trump’s denunciations of the Times as “failing” have acted as commercial “rocket fuel” for the paper, according to its CEO, Mark Thompson: it gained an “astonishing” 308,000 net digital news subscriptions in the first quarter of 2017.

US-based broadcast organisations such as CNN and ABC, once considered slick or bland, have reacted to Trump’s bullying in forthright style. Political satire is thriving, led by Saturday Night Live, with its devastating impersonations of the president by Alec Baldwin and of his press secretary Sean Spicer by the brilliant Melissa McCarthy.

British press reaction to Brexit – an epic constitutional, political and economic mess-up that probably includes a mind-bogglingly destructive self-ejection from a single market and customs union that took decades to construct, a move pushed through by a far-right faction of the Tory party – has been much more muted. The situation is complicated by the cheerleading for Brexit by most of the British tabloids and the Daily Telegraph. There are stirrings of resistance, but even after an election in which Theresa May spectacularly failed to secure a mandate for her hard Brexit, there is a sense, though the criticism of her has been intense, of the media pussy-footing around a government in disarray – not properly interrogating those who still seem to promise that, in relation to Europe, we can have our cake and eat it.

This is especially the case with the BBC, a state broadcaster that proudly proclaims its independence from the government of the day, protected by the famous “arm’s-length” principle. In the case of Brexit, the BBC invoked its concept of “balance” to give equal airtime and weight to Leavers and Remainers. Fair enough, you might say, but according to the economist Simon Wren-Lewis, it ignored a “near-unanimous view among economists that Brexit would hurt the UK economy in the longer term”.

A similar view of “balance” in the past led the BBC to equate views of ­non-scientific climate contrarians, often linked to the fossil-fuel lobby, with those of leading climate scientists. Many BBC Remainer insiders still feel incensed by what they regard as BBC betrayal over Brexit. Although the referendum of 23 June 2016 said nothing about leaving the single market or the customs union, the Today presenter Justin Webb, in a recent interview with Stuart Rose, put it like this: “Staying in the single market, staying in the customs union – [Leave voters would say] you might as well not be leaving. That fundamental position is a matter of democracy.” For the BBC, it seems, to question Brexit is somehow to be unpatriotic.

You might think that an independent, pro-democratic press would question the attempted use of the arcane and archaic “royal prerogative” to enable the ­bypassing of parliament when it came to triggering Article 50, signalling the UK’s departure from the EU. But when the campaigner Gina Miller’s challenge to the government was upheld by the high court, the three ruling judges were attacked on the front page of the Daily Mail as “enemies of the people”. Thomas Jefferson wrote that he would rather have “newspapers without a government” than “a government without newspapers”. It’s a fair guess he wasn’t thinking of newspapers that would brand the judiciary as “enemies of the people”.

It does seem significant that the United States has a written constitution, encapsulating the separation and balance of powers, and explicitly designed by the Founding Fathers to protect the young republic against tyranny. When James Madison drafted the First Amendment he was clear that freedom of the press should be guaranteed to a much higher degree in the republic than it had been in the colonising power, where for centuries, after all, British monarchs and prime ministers have had no qualms about censoring an unruly media.

By contrast, the United Kingdom remains a hybrid of monarchy and democracy, with no explicit protection of press freedom other than the one provided by the common law. The national impulse to bend the knee before the sovereign, to obey and not question authority, remains strangely powerful in Britain, the land of Henry VIII as well as of George Orwell. That the United Kingdom has slipped 11 places in the World Press Freedom Index in the past four years, down to 40th, has rightly occasioned outrage. Yet, even more awkwardly, the United States is three places lower still, at 43rd. Freedom of the press may not be doing quite as well as we imagine in either country.

Harry Eyres is the author of Horace and Me: Life Lessons from an Ancient Poet (2013)

This article first appeared in the 20 July 2017 issue of the New Statesman, The new world disorder