Should Cameron reject both press charters in favour of an ombudsman?
It is a little known fact that the distinguished media lawyer Geoffrey Robertson once did a mini Leveson of his own more than a decade ago – for the Government of Mauritius.
Little over two weeks before the Hacked Off Royal Charter goes to the Privy Council for a formal signing off, the QC has reminded us what he recommended for Mauritius – and what a poor record British judges have in protecting free speech.
The sorry list includes banning the Spycatcher memoir after it was published elsewhere, the sexist super-injunctions gagging women who wanted to tell the truth about heartless lovers and all the way to finding against the Sunday Times’ thalidomide investigations.
Unlike Lord Justice Leveson, Geoffrey Robertson, an expert in media law, decided against forcing newspapers to make grovelling apologies because such mechanisms, he believes, are actually a denial of free speech and can indeed amount to “false speech”.
Robertson rejected it as unjust to force newspapers to pay the costs of unsuccessful cases brought against them because they had declined to join a regulatory body. In fact, being forced to pay the legal costs of the other side, in such circumstances, would be a miscarriage of justice.
So too, Robertson argued, was the imposition of “exemplary damages” on small magazines that refused to sign up for regulation. In the UK the result could be the closure of everything from Private Eye to political magazines such as the New Statesman and Standpoint, Robertson explained in a blog in Guardian Media.
Robertson’s Mauritius report rejected the idea of fines – £1 million fines imposed by “amateur worthies” rather than the courts was not free speech it was expensive speech.
Instead he recommended successful complainants should be reimbursed for expenses and compensated for actual losses suffered.
At the heart of Robertson’s plan was the office of an ombudsman which could mediate disputes and if unsuccessful hear evidence and decide whether the complaint should have a correction or right of reply. The ombudsman could also deal with seriously damaging posts on social media – nailing lies on its own website.
The ombudsman would be established by law “but with powers that no-one could rationally argue would impinge on freedom of expression.”
Robertson believes that everyone involved in the current debate has been far too willing to accept the Leveson report as holy writ.
“The only workable form of press regulation that can achieve public confidence is one that is entirely free both of political influence and of media interest. For that reason the ombudsman must have no political or industry ties, and an office staff with experience of investigating and fact-finding,” Robertson argues.
The ombudsman should be responsible to a body on which editors are represented but are not in a majority. That body would be responsible for tasks such as keeping the code of conduct up to date and organising ethical training for journalists.
The Government of Mauritius was rather lucky to get such a sensible and considered report and Prime Minister Cameron might have been wise to have glanced in the direction of the Indian Ocean before launching his ill-judged judicial inquiry.
We are where we are now with two competing Royal Charters in the field, one acceptable only to the government the other only to the press, or at least most of the press including the large newspaper groups and the Newspaper Society. It therefore may be too late to start talking about ombudsmen.
Other than the fact that there is a real mess in the offing here, it is difficult to predict the outcome.
Robert Hazell, a constitutional specialist at University College London, warned this week that the Privy Council will not issue two Royal charters for the press. According to Hazell the newspapers are doomed to failure unless the Government backs their charter – something that seems very unlikely at the moment.
The situation is made even more complicated by claims by the 1,700-strong Institute of Journalists that a new press Royal Charter would interfere with the charter they already have.
The dependence on Royal charters is simply not a good idea for a free and independent press but the newspaper industry’s “independent” charter, for all its flaws, is at least less bad than the Hacked Off charter.
As the latest opinion poll makes clear, 67 per cent of the public believe the new system should be set up in a way that does not give politicians the final say. Only 16 per cent think that MPs and peers should have the power to change the terms of a Royal Charter as promised in the Hacked Off charter. It was a newspaper-funded survey and the outcome, of course, depends on what questions you ask, but the findings chime accurately with widespread lack of trust in politicians.
If the Government goes ahead with its late-night, imposed Royal Charter we will be in difficult territory – the press being forced to take the unprecedented but entirely justified decision to ignore the will of Parliament on this occasion.
David Cameron, who rushed into this mess with little thought in the first place, and who at first stood firm on press freedom before collapsing in the face of the Hacked Off orchestrated coup, should now do something very unusual for a politician – pause for thought.
It would now be the right thing to do to adopt the Guardian editor-in-chief’s suggestion of a one-year moratorium. It would give time to see whether the industry can set up an independent form of self-regulation that will ensure not just that the illegal atrocities of the past do not happen again but that the press can be persuaded to behave more ethically – and decently.
A pause would also allow more thought to be given to the thorny issue of “the recognition body.” Would a charitable trust provide a more acceptable and workable answer?
Perhaps someone should listen to Geoffrey Robertson QC. The concept of the ombudsman might break the impasse over competing Royal charters, as long the office could be created under existing civil law.