Legislation after Leveson – “Too Many Notes”

“The trouble is, my dear Mozart, there are too many notes……. there are, in fact, only so many notes the ear can hear in the course of an evening.”

I can quote the Emperor Joseph’s reaction to Mozart’s Marriage of Figaro in Amadeus with a little authority, having once played the Emperor in a stage production of Peter Schaffer’s masterpiece.

How is this relevant to UK Prime Minister David Cameron’s lukewarm reaction to a key recommendation in the Leveson Report on Culture, Practice and Ethics in the Press in the United Kingdom – that  new legislation is needed? Well, it’s a quote that would most likely be well known to the thespian victims of press malpractice interviewed by Leveson in the course of 16-month inquiry. And if the Emperor returned today to share his wisdom about the UK’s legal system, he might say that we have “too many laws”.

Sir Brian Leveson recommends legislation to oversee a new regulatory body that would replace the current Press Complaints Commission. Cameron stated in Parliament that he was unconvinced that a new statute was necessary. He believes that the press should be given the opportunity to create an effective regulatory body without statutory controls. He didn’t rule out the possibility that if they failed to do so, he would step in and legislate.

While generally I’m not a great fan of Cameron or his pantomime horse of a government, on this issue I’m with him. I’m no Tea Party-style small government libertarian, but I do believe that laws should be made as a last resort when all other means of achieving a desired result have failed. I discussed this in The Lawmaker’s Holiday a couple of years ago:

Great ideas are one thing, but proper execution is another. Governments thrive on new ideas, new initiatives. When they fail, they try to divert attention from that failure by launching yet more initiatives. Perpetual motion is not the same as effective government. By slowing down the conveyor belt of new laws, politicians would need to find other ways to justify the trust placed in them. Improved scrutiny of public programs. Fixing what is not working without having to resort to new laws. And spells in the paddy fields for politicians and desk-bound civil servants – in the form of regular and direct engagement in the lives of the people they govern – would do more to re-establish popular trust in politicians in my country than yet another byzantine system for controlling expenses racked up by Members of Parliament. It might even help them to make better decisions.

Change that improves the lives of the many for the better tends not to come as the result of legislation thought up in policy think tanks. It comes as the result of groundswells of sentiment among large segments of a population. Lyndon Johnson would not have been able to end a century of institutionalized discrimination in the United States had it not been for the efforts of the Civil Rights Movement, a coalition of black and white activists given voice and inspiration by Martin Luther King.

There will be massive pressure on the Prime Minister to change his mind. The natural reaction on the street to a systemic problem in society is that “there ought to be a law against this”. Parliament is in business to make laws – it is therefore predisposed to legislate in order to justify its existence.  Leveson is a lawyer – he would be a brave man if he had spent two years and not came up with a report that advocated some form of change in the law. Governments are judged by the voters on what they do – not on what they don’t do. Opposition parties are judged on what they say they would do.

So it takes a little courage to stand against an overwhelming consensus in favour of “immediate action”. Yet has nothing happened in recent years in the wake of the phone hacking scandal that triggered the Leveson Inquiry?

On the contrary. Individuals responsible for phone hacking have been prosecuted and sent to jail. Victims of phone hacking have received large sums of money in settlement of damages from the main perpetrator, the News of the World. There are criminal cases pending against News of the World executives. The newspaper itself was closed down by its owner, News International.

At the time, I commented rather gloomily in Phone Hacking and the Death of a Newspaper:

As for Rupert Murdoch, he did a good job of convincing us in the recent parliamentary hearings that he was a clapped-out, much diminished 80-year old. His son came over as a diligent corporate apparatchik, far from the man his father is, or was. Yet Murdoch still controls a media empire that encompasses the rational – The Times, BSkyB, the Wall Street Journal – and the rabid – The Sun newspaper in the UK (the NoW’s former sister daily) and Fox News in the US (the platform for such eminently objective figures as Sarah Palin and Glenn Beck).

Which makes you wonder about his values. A self-confessed libertarian – a title that can be interpreted in many ways – his career suggests that he is one of those individuals whose value system is subordinate to the needs of his business, not the other way round. How otherwise could a man own both the Times and the News of the World? And how would you explain his support for such diverse political figures as Margaret Thatcher, Tony Blair, Barack Obama and the Republican Governors’ Association? I don’t doubt that he lives by a set of personal values in his private life. But whatever they are, they don’t seem much in evidence in his business life.

Murdoch is a man of his times. He jumped on an opportunity to create a transnational empire by riding the tide of globalisation. His time will soon be over. Other Murdochs will take his place. Those who call for greater regulation of global media empires are whistling in the wind. By and large, companies like News Corporation will be continue to do their business in the knowledge that no single state is strong enough to stop them from plying their trade wherever a financial, legislative or political regime best suits them.

And the rest of us will continue to be snooped on, lied to and manipulated, not only by organisations like Murdoch’s, but also from time to time by our own governments. Conversely, those same entities will sometimes entertain us, enlighten us and improve our lives. Just occasionally, a Watergate scandal or the suffering of a bereaved family will put the brake on things getting too out of hand, and cause us to think about the impact on us of media and government, rather than simply go with the flow.

And now, thanks to Leveson, we are thinking. For me, there are two key issues:

First, we already have laws that deal with excesses by the print media – covering data protection, defamation, corruption and illegal surveillance, for example. Several of them have been brought to bear in the phone hacking case.

Over the past fifteen years the state in all its various forms has acquired new powers relating to privacy and freedom of expression – they include enhanced powers of surveillance and the criminalisation of expressions of racial, religious and ethnic hatred. The existing Regulation of Investigatory Powers Act (RIPA) – originally introduced in 2000 as a measure primarily designed to counteract the increasing threat of terrorism – empowers numerous national and local government agencies to conduct electronic and physical surveillance of individuals and organisations. It has been used to monitor activities entirely unrelated to terrorism, such as dog-fouling and attempts to claim residence of an area in order to secure school places for children.

At present, the government is seeking to extend its powers to monitor and require the storage of mobile phone, email and internet use. Are we absolutely sure that data thus stored will not be used in a manner unintended by those who are drafting the legislation? And equally, can we be sure that by rushing to legislate in the wake of Leveson, we are not opening the door to future government cutailment of the freedom of the press, as those who argue against of immediate implementation point out?

Second, regulating the print media will only address part of the problem. Recently, a prominent politician, Lord McAlpine, was falsely branded a paedophile in the wake of the Jimmy Savile scandal. The accusations, which naturally caused him deep distress, did not come from the print or broadcast media. They came from the internet. So if the purpose of legislation is to protect people from such distress, then surely it should also address the internet? Leveson only devoted a single page to this issue, which was understandable, since it was outside the scope of his inquiry. It’s also not surprising that it was excluded. Like News International, the internet is transnational, and UK legislation can only regulate acts carried out in the United Kingdom.

But since the McAlpine case is still rumbling on, it would be very tempting for the government to say “OK, if we’re going to sort out the press, let’s deal with the internet at the same time”. So we then get another raft of legislation in an area fraught with difficulty, with further potential for unintended consequences.

But let’s assume that Cameron ignores the bigger internet picture for the moment, and concentrates on Leveson’s recommendations.

A free press acts as an invaluable counterbalance against infringements by authorities of civil liberties. Although Leveson goes to great lengths to point out that “regulation of the regulator” in no way curtails the freedom of the press, I do believe that no harm is done by taking the time to think carefully about the implications of the legislation he proposes, in order to avoid the potential for scope creep that followed legislation such as RIPA.

The phone hacking scandal has generated a widespread sense of revulsion against abuse of the freedom of the press. Leveson’s report puts those abuses even more firmly in the public eye.  Even if it takes six months or a year for the government to make a decision on legislation, I doubt that the press over the next year will be foolish enough to carry out the practices so heavily criticised in the report. And that period of reflection opens the door to public consultation based on a green paper. As Cameron says, it also gives the press the opportunity to come up with new proposals for self-regulation.

I live in a region where freedom of the press is a fragile thing – continually redefined by laws that are often sweeping and vague, where proprietors routinely promote political, social and commercial agendas far more rigorously and blatantly than Rupert Murdoch ever did. For all the shortcomings of the British press, I would not exchange it for any other.

Cameron is right. We should take time with this. The issue is too important for hasty decisions. And we have too many notes already….