Tim Crook

The Statutory Dilemma, Leveson Inquiry and Media Law and Ethics Reform

In Opinion on November 17, 2012 at 6:40 pm

The Leveson Inquiry Report- much anticipated and controversial history

The NUJ’s policy for ‘statutory underpinning’ of print regulation is one of the more troubling issues in my near 38 year career in journalism. It has been hard enough being in a University Department (Media & Communications, Goldsmiths) surrounded by colleagues who are at the very centre of the Hacked Off and Coordinating Committee for Media Reform that advocates the surrendering to Parliament of a vitally important constitutional independence.

My colleagues also back statutory ‘right of reply.’ In my opinion these are authoritarian measures of reform.

They will do nothing to improve media reporting and publication standards. They are antithetical to my professional existence as a journalist.

I have tried to debate the issue at the on line platform for Press Gazette and I have had ranged against me Professor Chris Frost at Liverpool John Moores University and ‘Ethics Chief’ of the NUJ, and Seamus Dooley, the Irish Secretary of the NUJ. Quite rightly an NUJ activist local to me in Lewisham, Chris Wheal, has called for a national ballot of members over the issue.

I have considerable experience of reporting, broadcasting, teaching, training and researching media law and ethics stretching back to 1982 with a track record at the National Broadcasting School, BBC and my tenure at Goldsmiths has been over 20 years starting as a visiting lecturer in 1990. I have contributed to and written six books on media law & ethics, presented at conferences and successfully campaigned for democratic reform of journalists’ rights in the context of freedom of expression and legal secrecy.

Yet I do not feel I was  consulted or involved in the formulation of the NUJ’s  policy. I did not have the opportunity to vote on it. At Goldsmiths I have not had one chance to discuss in any meeting my concerns or anxieties over policies rooted in the CCMR.

Drafts of documents were circulated by email, and my reservations have been expressed, but there has been no invitation to involve me in any face to face or committee debate.

UK’s national magazine and on line site for journalists

I have no wish to question the authority and credibility of Chris Frost’s research and arguments. The same goes for the Coordinating Committee for Media Reform. I admire and agree with a lot of the content of what they have submitted.  I fully respect and admire my colleagues at Goldsmiths. Their academic and research credentials and their specialist interests are second to none. It has always been a privilege to be associated with them.

They are brilliant analysers and academic researchers of the media and journalism history and practice. And it is on the pointed arrow of conceding statutory regulation and right to reply where I have to depart from the consensus. I believe these policies are fundamentally wrong and misguided and contrary to my professional conscience.

Politicians and judges, whether elected or appointed, cannot be trusted with the power to censor, direct, constrain, control, or remedy publication and media communication. Constitutionally they are supposed to exercise power with responsibility.

The media should strive to communicate with responsibility. Since its power should not and cannot be state derived, democracy and freedom of the media & expression means that there should be toleration for that power being exercised irresponsibly on occasion; certainly not consistently. The irresponsibility engaged is often the only measure and check to tyrannical and excessive abuse of power.

John Stuart and Harriet Taylor’s On Liberty of 1859 was categorically clear that freedom of the press and expression go hand in hand with the constitutional prerogative of dissent and indeed giving offence so that the tyranny of the  majority does not censor, discriminate and silence.

John Stuart Mill who with his wife Harriet Taylor wrote ‘On Liberty’ published in 1859

Almost the entire chapter 2 Of the Liberty of Thought and Discussion  of the book discusses and advocates freedom of the press from governmental, ecclesiastical, and state control. The text advises at the beginning of chapter 3 that the threshold of tolerating offence should rise up to the point of catalysing an outbreak of violence by mob– such as spreading a rumour outside a besieged corn-dealer’s house who has been responsible for manipulating prices. (though Mill said the information ‘ought to be unmolested when simply circulated through the press’)

This seminal text does not argue that the accusation must remain censored forever; only until the risk of clear, immediate and present danger has passed. On Liberty talked about the importance of tolerating the publication of error and mistake, because very often the press publishes assertions, reports and opinions that can with the passage of time turn out to be half-accurate and partly truthful.

The message from the well-resourced, credentialized, and popular voices of Professors Chris Frost and Brian Cathcart, NUJ leader Séamus Dooley, and Hacked Off et al is that critics of their policy are misrepresenting it as some hysterical and exaggerated distortion of Big Brother taking over and state licensing of the print media.

Well what exactly do they mean by ‘statutory underpinning’? I invite you to go to their submissions to the Leveson Inquiry and find out, if you can, how they propose such ‘hands-off’ statutory underpinning is going to be achieved.  And when you do I would be interested to know how much clarity and precise explanation you could find. 

Frequent references were made to the Irish model- yet very little clear and precise description of how the ‘Irish model’ is supposed to be supplanted into the United Kingdom- an entirely different country, culture, history and proportion of constitution, media and population.

Statutory involvement can manifest itself in different ways can it not? But in the end where is the control? If it is statutory, then the control ultimately has to be derived from the House of Commons, the House of Lords and/or executive government.

If a successor to the current Press Complaints Commission is not to be self-regulatory and needs to be statutory then it would appear to me that the oversight would have to come via executive government by cabinet and or secretary of state and/or by Parliamentary committee.

The appointment of any oversight committee by a Secretary of State however defined in Act of Parliament will be vulnerable to political manipulation. The same problem will apply to any Parliamentary committee. Just consider how fraught, political and indeed media critical the Select Committee on Culture, Media & Sport has been in recent years.

This is the committee that presided over the live assault of the octogenarian Rupert Murdoch on world-wide television, and advocated that on matters of privacy the Press Complaints Commission should require journalists to normally notify the subject of their articles prior to publication–  a legal measure flatly rejected by the European Court of Human Rights when sought by Max Mosley.

As soon as regulation, however imaginatively constructed with firewalls, buffer zones and the intended infrastructure of ‘independence’, is vectored by state power e.g. executive or legislative, if challenged and disobeyed, the state will be tempted to and indeed feel obliged to apply punitive control and sanction via the judiciary.

I do not believe the British media and most of its journalists want to be ‘underpinned’ statutorily in any way. They certainly do not want to be compelled to comply with a statutory right of reply. The reasons are simple.

We have been statutorily underpinned, dabbed, coded, prescribed, proscribed, and patronized practically every which way for the last hundred years and the results have been censorious, inhibiting, and authoritarian. Popular penal retributivism and crime control is not the answer and will not lead to better journalism.

While the proposals in the NUJ and CCMR policies are intelligent and well intentioned, the results will be a disaster for British journalism.

The National Union of Journalists- UK and Ireland’s largest trade union for journalists

We were told after the Sunday Times Thalidomide success at Strasbourg in 1979 that the 1981 Contempt of Court Act would statutorily underpin journalists’ protection of sources and liberalize sub judice restrictions. All we got was the persecution of the Guardian, Bill Goodwin, Sally Murrer, jailing of Sarah Tisdall and others, and now we have the plumbing of journalists files and their sources in multiple police enquiries at News International and they are now knocking on the door of MGN.

British judges are out of control with reporting bans and media suppression orders that become prohibitively expensive to challenge and become a spiders’ web of secrecy and censorship.

The Human Rights Act was supposed to offer a freedom of expression paradigm with Section 12(4), but judicial activism turned a particular regard for Article 10 freedom of expression into a subjugating balancing act and spawned back door media privacy law operating mainly in secret and by prior restraint.

We also lost the common law priority of Bonnard v Perryman 1891 that injunction would be trumped by an intention to defend. Former Home Secretary Jack Straw even emphasised to Lord Justice Leveson how right he was to trash an entire edition of the Sunday Telegraph by prior restraint judicial gagging order for scooping the Stephen Lawrence Report.

The initiative should have been seized to convince and persuade that the phone & computer hacking practices were probably desperately wrong cutting corner measures to secure the proof to defend against iniquitous libel laws.

The faults and wrongs of a minority of national UK journalists, certainly less than 0.5%, did  not justify a year long and six million pound public inquiry that problematized all journalists as potential criminals, and unethical ‘hacks’ who need to be ‘decontaminated’ for their felonies, misdemeanors and ethical transgressions.

It is desperately sad that the fairness, impartiality and credibility of the inquiry has been challenged in regard to the background and connections of at least one of the assessors.

I thought that the inquiry presented a biased and distorted representation of my noble and honourable profession. This is an insult to present and past colleagues who have given and risked their lives to expose wrongdoing, report suffering and injustice and diligently reported in a variety of ‘public interests’ for people of all ages, backgrounds, ethnicities, classes and political and social interests.

The Inquiry and wider society needs to recognize that public interest becomes state interest if determined by legislature, judiciary or executive. There is nothing wrong in recognizing that the public interest of the Sun, Mirror, Star and People has to be different to that of the Guardian, Independent, Telegraph, Mail and local & regional press, BBC or ITV.

There is nothing wrong in arguing for and recognizing the democratic legitimacy of public interest readership and audience that is everyday rather than every four or five years by electoral ballot.

I do not disrespect for one moment the desire to have better standards, challenge bullying proprietors, editors, and journalistic miscreants, but they are in no greater proportion of humanity than lawyers, police officers, politicians, doctors, dentists and even judges; and the latter are intriguingly the least transparent with their ‘regulation.’

NUJ, industry, academics and journalists everywhere should be agreeing to fight and campaign for a libel/privacy act that calibrates burden of proof on claimants, channels all litigation into after publication arbitral court proceedings where damages are capped at £10,000 and with non punitive costs and published adjudication.

A libel/privacy defence of reasonable and proportionate correction to nullify future litigation is a better way of tabling and operating ‘the right of reply.’ An employment law conscience clause is surely something employers and trade unions could agree on for everyone. Not only would it give whistle-blowers added protection, it would protect corporate integrity, reputation and save a fortune in negligence litigation.

I am profoundly disappointed in the NUJ and its leadership in how it has responded to ‘Hackgate’ and the Leveson Inquiry.  These have been crises that needed constructive, rational and reasoned rhetoric and language of reform.

In contrast the Chartered Institute of Journalists seemed to be much more measured and proportionate in their submission stating ‘there is no justification for new press laws’, sensibly arguing that ‘journalists often find themselves in a very grey area while investigating a story,’ and as a journalists organisation they have been true to article 10 of their code of conduct that they ‘will defend the principles of a free press and freedom of speech and will do nothing to damage those principles.’

The Chartered Institute of Journalists- Britain’s oldest association and union for journalists

We should be talking about egalitarian justice as fairness through more independent self-regulation. We need more imaginative and culture changing remedies such as restorative justice conferencing combined with legal constitutional independence of the media to put us on a par with the judiciary; something Lord Justice Leveson appeared to suggest as an option.

We need a social contract and due process for journalism law and ethics reform; not a programme for zero tolerance, legal stockade and revenge, and endless impression that there is a growing and profitable industry of  ‘phone-hacking lawyers are us.’

It is important that we leave a safe and secure media law and ethical landscape and ecology for the young and emerging generations of journalists and media professionals. They deserve to be given the right to exercise power with responsibility rather than presumed to be likely to exercise it without and therefore controlled, gagged, disabled and shackled by authoritarian law and the added chilling effect of widening statutory regulation.

  1. This is well meaning but confused. There are rules (currently PCC) and laws – common law and statute. You appear to disagree with much of the current law, but that has nothing to do with Leveson.

    The issue for Leveson is who shall make the rules (not the law) and who shall enforce them. He may well suggest that the industry should make the rules with outside help of the kind Black/Hunt are suggesting, but that an independent statutory body should enforce them.

    The PCC had rules but they were not properly enforced. The law protects you but only if you are extremely rich. If Leveson comes up with a statute that gives everyone, not just the rich, the protection of the existing law and ensures that the industry’s own rules are enforced, he will have done a great job.

    Political control of an independent body is a myth. The government’s impotence in the face of the Abu Qatada fiasco is proof of that.

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