This editorial will be published in the print edition of The Independent on Thursday March 21st
With reluctance, we have accepted the use of a Royal Charter to create a new, wholly independent regulator for the press. And with that same reluctance we have accepted the need for a line of statute to protect it from meddling. For all the histrionic claims of centuries of press freedom ended with the stroke of a pen, the reality is that a clause of law ensuring that the new rules cannot be arbitrarily altered by politicians, through the Privy Council’s traditional jurisdiction over royal charters, is a defence of the Fourth Estate rather than an encroachment upon it.
The tragedy, of course, is that such measures were ever necessary. Following the revelations of the phone-hacking scandal, however – capped by the Leveson Inquiry’s unedifying catalogue of privacy invaded, grieving parents hounded, and innocents smeared – it is not enough for newspapers simply to promise a cleaner future. Yet to acknowledge the general necessity of stricter oversight is not to acquiesce with every detail proposed. There have been wins for the press: that the new editorial code of conduct will be composed by journalists, for example. But the plans finally agreed upon by politicians this week are still far from perfect.
The proposal of an arbitration system to which any complainant – including third parties – have free access is cause for particular concern. With no potential cost to making a complaint, yet the chance of financial gain, the risk of mischief-making, even opportunism, is high. Nor are the implications simply vexatious, though that would be harmful enough. With much of the press – particularly local newspapers – already suffering financially from the rise of the internet, there is also a very real commercial danger here.
The plan for so-called “exemplary damages” is also problematic. Under the scheme suggested, organisations which refuse to sign up to the (voluntary) regulatory regime face extra-high fines if found guilty of libel or breaches of privacy. Indeed, even if found not guilty, the complainant’s costs might still have to be paid. Not only are there questions as to whether such measures are legally enforceable, with lawyers warning of a potential breach of the freedom of speech clauses in the Human Rights Act. The principle – of coerced membership – is one that sits uncomfortably in a free society.
As regards both arbitration and exemplary damages, there is still wriggle room. And it is here that attention must now focus. Elsewhere, though, it is time to bow to the inevitable.
Although much continues to be made of the press losing its veto over appointments to the regulator, the issue was never likely to be won. Worrying though the prospect of an unashamed press-basher inveigling their way onto the panel might appear to be, the failures of the newspaper-sponsored Press Complaints Commission were so egregious that the case for the industry continuing to mark its own homework could not be credibly made.
A similar logic pertains to the decision that the watchdog will be able to stipulate upon which page an apology must be run, rather than simply requiring it to be printed somewhere. While regrettable that the point was lost, it was nigh impossible to expect otherwise – given the palpable power imbalance between newspapers and those that complain of mistreatment at their hands.
On balance, then, while the outlines of the newly agreed regime seem a reasonable compromise, potentially critical flaws remain. And, behind the fulminations of some elements of the press, the fact remains that a new system is worthless if the majority refuse to participate. The job, therefore, is not yet done.