Spectator 15 October 2015
Later this year, or more probably in the spring of 2016, the following scene may play out on the steps of the High Court in London. An editor will appear before the cameras and say: ‘I am instructing my reporters stop investigative journalism until the law is changed.’
The naïve who have failed to educate themselves on the assault on press freedom in Britain will be more confused than outraged. How can this be, they will ask. They will be enlightened by the editor of – well, let’s say it’s my editor here at The Spectator, but it could just as easily be the editor of the Guardian, Observer, Private Eye or any other national or local newspaper or magazine.
The court had vindicated the paper, he or she will explain. The judge ruled that its account of the MP stealing public money or the Russian oligarch buying influence was true. At great trouble and expense, the paper had produced journalism in the public interest, and then took more trouble and expense to defend its journalism in court. So well had it done, the judge had concluded that the politician or oligarch’s case was hopeless: vexatious litigation and a deliberate waste of the court’s time.
Hopeless, maybe, but not entirely pointless. Because the newspaper had refused to sign up to the government’s medieval royal charter on press regulation, it has to pay its costs, even though it won, and the MP or oligarch’s costs, even though they lost. Every newspaper, magazine and news website in Britain has refused to sign up. Thus, every newspaper, magazine and news website will face extortionate charges, even if they had exposed corruption or crime in the public interest.
Such will be the law of dear old England, that beacon of liberty, that sceptred isle, passed by the mother of parliaments, to the delight of autocrats the world over.
On 3 November a state-created and state-funded quango called the Press Regulation Panel will start flexing its muscles and its £3 million budget. It will trigger exemplary damages for any news organisation, which loses a ‘news related’ court case, such as a libel or privacy action. A shadowy body called IMPRESS, whose financial backers are a mystery to me, says it will then apply to become the press regulator. If newspapers, magazines and websites fail to join IMPRESS, they will not only face punitive damages, but be forced to pay the other side’s cost in a libel case, regardless of whether they win or lose.
Investigative or contentious journalism of any kind will become a formidably risky business in Britain: too risky for all local and most national titles.
Lord Leveson, who conducted a star-struck and unforgivably shallow inquiry, which took little or no account of the fundamental liberties of this country or the Human Rights Act, will have his monument. The politicians, who rushed through legislation without consultation in 13 hours and 7 minutes, will be in the happy condition of finding that their own bent donors and, indeed, their own good selves will be beyond the hard scrutiny of old and new media alike.
The details of the coming catastrophe are set out in a formidable report Leveson’s Illiberal Legacy released today. (Newspapers funded it, I should add, but civil liberties lawyers and free speech activists wrote it.)
In demoralising detail, they show how Britain, which was once an inspiration to oppressed peoples, is now providing models for authoritarian regimes to follow. Their work is well worth reading in full. They do not, however, deal with the question I hear all the time when I make the case for a freedom of speech and publication: ‘Didn’t the press bring this on themselves?’
Of course it did. Or rather criminal elements in the tabloids allowed a very sly and well-funded campaign to assault fundamental liberties. But consider that the News of the World, the chief criminal, no longer exists; and that journalists who broke the law – the existing law, note – have gone to prison. Consider then that the Guardian, which revealed the hacking scandal, has rejected the new regulatory regime, and Private Eye, which has done more than any other publication to expose misconduct in the media, won’t go near it either.
They won’t, and no editor or journalist with integrity will, because you cannot collaborate with a system of quasi-state control. By all means, make access to the courts cheap and easy for those wronged online or in print. Slashing the costs of libel and privacy actions is the only way to cope with the new media of the 21st century. But notice one final point. Hacked Off, a movement of lawyers, who like large fees, and celebrities, who can afford to pay them, never asked for democratic law reform.
To say the hacking scandal justifies the abolition of press freedom is like saying the MPs’ expenses scandal justifies the abolition of democracy. Our freedoms become dependent on the behaviour of the worst rather than the best of us.
I think I can guess what will happen next. When the first newspaper is punished by the courts for telling the truth in the public interest, public opinion will wake up to the threat to our freedoms.
An editor hit by the new penalties will then have to take a deep breath, empty the company bank account, and bring a case under the Human Rights Act.
The legislation runs contrary to the rule of law, he or she might say, because a newspaper which has told the truth and committed no crime or tort can still be punished. It stifles freedom of speech, contrary to Article 10 of the Convention on Human Rights, and the older, but alas dying traditions of the English law. It prevents a fair trial, for what can be fair about a trial that punishes the guiltless party? And it undermines equality before the law by having separate rules for journalists and then separate rules within those rules for journalists who refuse to bend the knee to a state-approved regulator.
Call me an innocent babe and a cock-eyed optimist, but wouldn’t it be better if Parliament cleaned up the mess it has made without waiting for an instruction from Strasbourg?