On Twitter: @JamesFirth and @s_r_o_c (post feed)

Got a tip? tip@sroc.eu

Friday, 30 November 2012

The elephant in the anti-Leveson editorials: privacy and libel, and the paradoxes they bring

Leveson's free press paradox. He wants a free press. He wants a regulatory framework.

Cameron's voluntary body paradox. If major papers don't sign up, he'll pass laws to force them.

Leveson's voluntary body paradox. There are benefits for joining and, through exemplary damages and court cost arrangements, potentially hefty punishments for not joining.

Sitting at the heart of all these seemingly paradoxical positions is one reality: we do not have, today, a press that is entirely free from all state control.

And the shackles of privacy and libel law would become far more restrictive should we have an effective enforcement regime for all.

Whether or not we want or need privacy and defamation rights enshrined in law is itself a question I can't answer without tying myself in knots.

But we have them today.

Day-to-day enforcement is through the civil court, and because the judiciary is independent of the state, some argue there is no "state control" of the press.

And here is the problem at the core of Leveson: the state has granted us all a right of privacy and a right to defend our reputation, yet today we don't all have access to defend these rights due to the cost of access to the civil courts and the threat of being bankrupted by the opposing side's costs should we lose.

So Leveson is proposing a tribunal of sorts that should offer a means of redress for anyone wronged by the press without having to resort to a court.

Whilst Leveson conveniently (and thankfully) ignored the far more complex online questions - complex because we all become publishers and potential victims of intrusion - defamation and privacy are becoming increasingly important rights for everyone.  

Particularly victims of crime and those falsely accused of a crime, who can suffer at the hands of the press and, the latter at least, at the hands of online publishers too.

Inevitably any such tribunal will face the accusation that it is restricting a free press unless the body is run entirely by the free press; which is where we were with the "toothless" and "ineffective" Press Complaints Commission.  

Full circle.

A war by proxy on privacy rights and smaller publications

However you analyse it, attacking Leveson's findings is a war by proxy against effective redress for privacy violations and defamation for the less wealthy. 

We need to have this debate now.  A debate about privacy and defamation rights and access to redress.

It upsets me to hear politicians arguing in parliament that newspapers should be prevented from "printing rubbish" as behind such words seemingly in the public interest lies a desire to control the output of the press in some way that is quite frankly unacceptable. 

And it upsets me to see powerful publishers - the country's biggest - rubbishing the debate before its already started because there's another power play bubbling under the surface.  Protection of the old media's established position against smaller publishers and online sources.

Supporting the status quo leaves questions of privacy and libel in the sole care of the court.  And this leaves smaller publications disproportionately affected by the threat of high court costs - even when defending well-founded and valid criticism of powerful people.

I'm absolutely convinced that dominance and monopoly is a major contributing factor to the collusion, corruption and unethical workplace behaviour that became normalised in a small but notable section of the tabloid press.  A small section that commandeered a very large audience.

The "guardians of democracy" became complicit in the subversion of democracy. But not all the "guardians", and this is crucial because there won't be a perfect solution - there'll be a least-worst option - and we might have to put up with such abuses as an unavoidable side effect of the benefit of a free press.

We need plurality but we also need large, powerful news outlets capable of going where smaller organisations cannot afford or find the balls to go.

Freedom to, freedom from (again)

I see no clear answers. But perhaps more worrying I see very little honest debate. 

I sympathise with much of what David Cameron said yesterday, yet he spent half his time at the dispatch box trumpeting the questionable fact that Leveson had exonerated him and his then media minister of collusion in the Murdoch affair. The rest of the time he merely deflected, rather than answered, his critics.

Grossly unfair generalisations and simplistic statements flowed back from the opposition benches.  

Anyone following the debate would be lead to believe we are a country void of honest journalism; when in fact we have today a free press, one of the freest in the world - and yes that is a considered opinion - which consistently exposes issues in the public interest and, tabloids aside, generally behaves itself.

And yes it's not perfect. The MPs' expenses scandal was exposed. Arms to Iraq was exposed. Yet neither Jimmy Savile nor Cyril Smith were exposed; and I suspect the true scale of corruption at the heart of the North Wales child abuse scandal and other pockets of localised corruption have so far evaded press scrutiny.

We need a debate not about press abuses but about privacy, defamation and redress.  

A debate that is focussed on protecting freedom, properly balancing the "freedom to" publish against the public's right of a "freedom from" intrusion.

Past debates on privacy and defamation have in my view been steered by vested interests towards the concerns of the powerful in defending their own reputation and privacy, hence why court costs are rarely seen as a problem and why corporations have defamation and some privacy rights.

Yet "freedom from" protection in a free society should be aimed primarily at protecting the vulnerable against the strong; not the powerful against the public, for the powerful should use their platform to defend themselves, not fall back to laws which encumber free and open discussion.

I imagine it's hard for an MP, the protection of whose image and reputation is vital to his or her chances of re-election, to see privacy and libel from the perspective of an ordinary person wronged in the press or defamed on Facebook, whilst acknowledging their own rights as an elected representative must necessarily be curtailed to facilitate open political debate in a democracy, but I hope one day this debate will take place.

Can we draw clear lines to weed-out unacceptable abuses, to provide strong but well-defined protection, a "freedom from", without impinging too far on free speech - a "freedom to"?

Can we have effective privacy and defamation laws that protect all regardless of ability to pay without creating a monster which eventually shackles the free press? I genuinely don't know the answer.



  1. I think Rowan Atkinson touched on some of this when he said "feel free to insult me" while calling for common sense on laws that could damage free speech.


    I don't think there's a perfect answer to this one and that's why it keeps going around in circles. But we also shouldn't forget that those who did the phone hacking are also being charged under existing laws.

  2. Indeed there is no perfect answer - a watchdog with more teeth is hard to argue against, but having it chaired solely by press will effectively make it a new PCC, while having outside members does run the risk of stifling the freedom of the press.

    It is also important to note, as the commenter above does, that phone hacking was illegal and is being prosecuted as such - this goes above and beyond ethics, the remit of Leveson.

    Also that the scope of phone hacking became known largely because of the efforts of the Guardian, because the police had given up, proving that the press can regulate rogues among it and is not a homogenous mass

  3. Do you want privacy defined in terms of extreme intrusive news-gathering techniques or military uniforms and orgies, that is the question!

    ... Issues which affect the masses or issues which affect the few who can access the court to make privacy claims.


Comments will be accepted so long as they're on-topic, do not include gratuitous language and do not include personal attacks or libellous assertions.

Comments are the views of the commentator and not necessarily the view of the blog owner.

Comments on newer posts are not normally pre-moderated and the blog owner cannot be held responsible for comments made by 3rd parties.

Requests for comment removal will be considered via the Contact section (above) or email to editorial@slightlyrightofcentre.com.