Leveson, press freedom and the watchdogs.
| Author | Rowbottom, Jacob |
In November 2012, Lord Justice Leveson delivered his report on the culture, practices and ethics of the press. In the report, he sets out proposals for reform in a number of areas, including data protection, media lobbying, and relations with the police. However, most attention has focused on the proposal for a new system of self-regulation. Leveson recommends that a new body replace the Press Complaints Commission, which, unlike its predecessor, will have the power to impose financial sanctions in some cases. The new body would not have any statutory powers, but Leveson proposes that a law should set out criteria to assess whether the new regulator is effective and sufficiently independent of the press, parliament and the government. That law should also 'provide a mechanism to recognise and certify' that the new self-regulatory body fulfills the criteria (Leveson, 2012, 1772). The mechanism Leveson proposes is for a 'recognition body' to apply the criteria to the regulator, as part of an assessment taking place at least once every three years. The report therefore does not call for a regulator to be set up by statute (as is the case with broadcasting). Nor does it propose that legislation should actually set out the detailed standards for the press to live up to. Instead, the role for legislation is one step removed. Under the proposals, legislation will set out the criteria to evaluate the regulator and empower the body that certifies the regulator. That is the central part of the 'statutory underpinning' that will be the focus for discussion here (1).
Much of the debate in the immediate aftermath of the report focused on the statutory underpinning. The Daily Mail wrote that Leveson 'seems worryingly unable to grasp that once MPs and the media quango become involved, the freedom of the Press from state control will be fatally compromised for the first time since 1694' (Daily Mail, 2012). Along similar lines, The Daily Telegraph wrote:
it would be wrong to use bad behaviour by the minority as an excuse to introduce the first press statute since censorship laws were abolished in 1695. Whatever the judge hopes, this would be a slippery slope to state meddling. (Daily Telegraph, 2012) The Independent also wrote that statutory underpinning is 'not only unnecessary, but undesirable' (Independent, 2012). Most famously, the Prime Minister told the House of Commons that legislation would cross 'the Rubicon of writing elements of press regulation into the law of the land' (House of Commons debates, 2012a, col. 449). By contrast, the supporters of Leveson are dismissive of such concerns and point out that the reforms require minimal legislative input.
In the fierce debate that has followed Leveson, arguments about press freedom have been strategically advanced to further political goals. It is sometimes difficult to see which claims are the hyperbole of political rhetoric, and which should give genuine cause for concern. A further difficulty in assessing the debate lies in the fact that much argument has focused on the form of press regulation, rather than the substantive question of what the new regulator will actually do. There are, however, important issues of principle and the form of regulation will be relevant to its effectiveness. To assess the arguments underlying the debate on statutory underpinning, it is worth reflecting on the meaning of press freedom.
The nature of press freedom
Early on in the report, Leveson distinguishes freedom of speech, as held by individuals, from freedom of the press. According to Leveson, the former is about self-expression and 'has its roots in a very personal conception of what it is to be human' (Leveson, 2012, 62). The same is not true of mass media institutions, which are 'not human beings with a personal need to be able to self-express' (Leveson, 2012, 62). He is certainly right to draw this distinction, and it is a difference that also reflects our concerns about the power of the media to reach a mass audience on a regular basis. The traditional mass media, that is newspapers and broadcasters, operate in a one-to-many paradigm. Yet those media institutions that reach a mass audience can only accommodate a limited number of speakers (2). Consequently, we justify press freedom not because we think it so overwhelmingly important that a select group of media owners and professionals get the chance to vent, say what they want to a mass audience, or develop their personalities. It is difficult to justify a freedom in terms of its personal benefits to the speaker when, in practice, only a limited group can exercise that freedom.
If the justification for press freedom does not lie in the speaker's right to self-expression, then instead it tends to be justified by its service to the audience or to the public as a whole. There are many varieties of this argument, some of which stress the functions that the mass media perform in a democracy. Most common are arguments that media freedom is necessary to provide information to the public, to hold the powerful to account, to represent a range of diverse viewpoints, and so on. Taking this approach, Leveson stresses the instrumental value of freedom of the press, as something to be 'promoted and protected to the extent that it is with the result that it is thereby enabled to flourish commercially as a sector and to serve its important democratic functions' (Leveson, 2012, 63). Note that he says press freedom is to be protected 'to the extent' that it furthers these goals, suggesting that where this is not the case then limits may be acceptable. Furthermore, insofar as press freedom is based on a concern for the 'community's welfare', it is something that can be balanced with other factors (Dworkin, 1985, 386-7). If this is the case, then it opens the door to arguments that some regulation of the press is necessary to protect other rights and interests.
Even though the instrumental justification comes with these limitations, the critics of Leveson tend to share this approach to press freedom. Newspaper editorials frequently trumpet the important role of the media in its service to democracy. Despite the implicit limits, this argument offers some advantages to the media. First, by emphasising its service to a democracy, the argument helps to legitimise media power. Second, by separating press freedom from individual freedom of speech, the argument can be relied upon by the media to claim special privileges (Dworkin, 1985, 386). For example, newspapers and periodicals are exempt from the election spending controls that apply not only to candidates and parties, but also to any person that wishes to use their economic resources on electoral campaigning. In that example, the instrumental role of the press as serving democracy is advanced to justify its special status in elections.
The democratic functions of the press
Leveson and his opponents therefore seem to share the instrumental understanding of press freedom. However, the different reactions to statutory underpinning might still be explained by a different view of the key democratic functions that the media are expected to perform. The central concern to the opponents of statutory underpinning is the independence of the press from government. There are a number of reasons why the independence of the press might...
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