Increasingly Hacked Off

There is at least some happy news for the newspaper industry at the beginning of 2013: the Hacked Off campaigners are getting increasingly angry.

This week the campaigners, led by Kingston University media academic Brian Cathcart, warned that the Government cannot be trusted with the Leveson recommendations and denounced the backroom negotiations between the parties.

One reason why Hacked Off is, well, hacked off, is that they are not party to the sort of closed-door negotiations where most political deals are ultimately done.

But the real reason why the campaigning group, which has been annoyingly effective over the past year, is angry is that they know in their hearts that they have lost the battle to achieve the full implementation of the Leveson recommendations, in particular the statutory underpinning of a new regulatory body.

They don’t trust the Government and presumably Prime Minister David Cameron in particular. Fine, but he does happen to be the Prime Minister, albeit with a complicated electoral mandate.

Cameron was foolish in the first place to go for the kneejerk reaction to the phone-hacking scandal with an open-ended judicial inquiry into the “culture, practices and ethics” of the press. He was even more foolish to promise in advance that he would implement the Leveson recommendations unless they were “bonkers.”

The Prime Minister did, however, redeem himself in the House of Commons after the publication of the Leveson Report with courage and an historical perspective when he said he has “serious concerns and misgivings” in principle about any statutory interference in the press.

“It would mean for the first time we have crossed a Rubicon of writing elements of press regulation into law of the land,” he said. It would be the first time such a thing had happened in more than 300 years.

The more you look, full implementation of Leveson would require a web of legislation and amendments to existing law.

You would need statute to enable Ofcom, the communications regulator, to be able to “recognise” a new “independent” press body and validate its codes and be the backstop regulator for those who refuse to join the successor to the Press Complaints Commission.

We are into oxymoron territory here. Can an independent regulator really be independent when its most central rules – its codes of practice – are, in effect, subject to an external body put in place by statute?

According to Leveson you would also need legislation to create a low-cost arbitration service and legislation to impose “exemplary” damages on those publishers who stay out in the cold.

Then there are the amendments needed to the 1984 Police and Criminal Evidence Act and to the Data Protection Act 1998.

It all adds up to quite a legislative programme.

Leveson’s proposals for changing data rules have come under particular criticism this week from figures who know what they are talking about, such as Information Commissioner Christopher Graham.

In an official response to the Leveson Report the Information Commissioner’s Office (ICO) said there were legitimate concerns that the Leveson proposals for tougher data protection laws would have a chilling effect on investigative journalism.

Graham said if Leveson’s data recommendations were implemented it would turn the ICO into a second mainstream press regulator – a role he neither sought nor wanted.

Luckily there is the real prospect of a deal between the Government and the newspaper industry that will not involve a crossing of the Rubicon.

Leveson’s data protection proposals should simply be ignored.

Lord Hunt, chairman of the PCC for as long as it stays in business, and a legal expert in regulation, is convinced that the highly desirable libel and privacy arbitration service could be set up under existing civil proceedings.

That leaves one important and difficult thing to do – create an effective and wholly independent press regulator without the benefit of statute.

The main barrier to a successful completion of this tricky task is the newspaper industry itself: that they will revert to type and resume traditional squabbling amongst themselves.

This would be an extremely foolish thing to do. It would leave those arguing for an important point of principle – no special legislation for the press beyond the laws of the land – with scarcely a leg to stand on.

The issues dissolve into a single task – creating an element of the recognition and validation factor without which, in the clichéd words of the hackacademics, the press would be marking its own homework. It wouldn’t be true of course if the new body is truly independent of the industry – but the point has to be dealt with for perception’s sake.

The idea of a committee of assessors chaired by someone like the retiring Lord Chief Justice Lord Judge would work and as part of the overall deal newspapers would have to agree to print regular assessments prominently, including criticisms.

The final threat of legislation

Cabinet Office Minister Oliver Letwin has suggested the press should come under Royal Charter a bit like the BBC.

It’s an interesting idea but one that probably falls short because it would inevitably involve statutory intervention, however the matter was dressed up.

Ultimately there is only one sanction that will work – the final threat of legislation if non-statutory regulation fails in the full knowledge of what will happen next.

As author of The Good the Bad and The Unacceptable, which looked at press misdemeanours in the Kelvin MacKenzie era, and the presenter on Chanel 4’s Hard News programme when David Mellor uttered the immortal words “the press is drinking at the Last Chance Saloon” it is difficult, but necessary, to ask for one last chance.

For the threat to be credible there may have to be a draft bill in the wings ready to fall on the heads of the press if independent regulation were to finally fail.

The task now is to see off Hacked Off and those such as Lord Justice Leveson who want to see statutory intervention now.

Once that is achieved the press can move on to deal with some of the failings that Leveson’s evidence remorselessly exposed – persistence that verged on harassment, an often reckless disregard for accuracy when the story is big enough, hidden conflicts of interest, sustained misrepresentation of groups in society, irresponsible science scares…

There is plenty of work to do and the future of the press as a trusted source in the internet age and one that is free of statutory interference depends upon it.