Legislation After Leveson – The Unified Option

In my previous post on Leveson, I referred to the UK’s Prime Minister throughout as David Campbell. He is, of course, called Cameron! I suspect that in my mind at the time he was in the process of morphing into Tony Blair’s ferocious press secretary, Alistair Campbell. The gentleman who pointed out my senior moment, Andrew Morton, an old friend, commented on Facebook:

I remember years ago having a discussion with you, Steve, where we agreed there was just too much legislation going through. And I agree that in this case it’s a moot point – to legislate or not, and how. However, I’m getting a bit cheesed off with this trumpet call about “the press has been free for 300 years” – clearly some dimly remembered history lesson some posh boy has dredged up and spread about. Governments have been interfering with press freedom one way or another throughout this period and it may be that we have to reassess ideas of press freedom and the rights of citizens in a radically new media environment.

I agree with Andrew. The BBC is a case in point. The poor old Beeb, even before it was battered by the recent Newsnight controversy (about which I commented here), has been accused of bias in favour of the other side by just about every government over the past 30 years. Much as visitors to Manchester United’s fortress, Old Trafford, complain that referees are afraid to award penalties against United for fear of the wrath of Sir Alex Ferguson. And, more recently, that whenever United are losing at home, referees seem to allow more injury time than when they are winning – which turns out to be true in recent seasons!

Yes, especially in times of war, the government does indeed heavily curtail the activities of the press in reporting “sensitive information”. In peacetime, it has frequently used the D-notice to prohibit the publication of information that it deems not to be in the public interest, particularly in matters of national security. Other methods of control and manipulation have included “off the record briefings” to the Press – in other words, unattributable leaks from Government sources, sometimes against other members of the government. Over the past 20 years, an army of unelected spin doctors, of which Campbell (Alistair, that is) was the doyen, have perfected the art of conditioning public opinion via the media.

Interestingly, Jon Ungoed-Thomas of the Sunday Times reports in today’s edition that Ed Richards, the Chief Executive of Ofcom, the broadcasting regulator:

Outlined his ambitious vision for media regulation: a common set of standards that could be applied to all forms of publishing, from an internet broadcast to a newspaper article.

It was a simple notion that a unifying code of principles could be applied to every media outlet in the land. But it raised one vital question: who would oversee it?

Ungoed-Thomas goes on to say that Richards was a strong supporter of Tony Blair, and that Cameron does not want Ofcom moving into the domain of press regulation, so that idea is not likely to fly.

The same article speculated that Ed Miliband, the Leader of the Opposition, who initially backed full implementation of Leveson, is now having second thoughts. Sensible chap.

Andrew’s point on “reassessing press freedom and the rights of individuals in a radically new media environment” is well made. But creating a new law, or even a new code, would be a challenge. Britain’s legal system is a mish-mash of statute and common law, overlaid in recent years by legislation adopted throughout the European Union such as the Social Chapter and the Human Rights Act.

As I see it, there are two impediments to creating a “unified law” dealing with the media.

First, the United Kingdom needs to decide whether it wishes to remain in the European Union. If it opts for the status quo, any media law passed will need to be continually in synch with EU ordinances. It also needs to decide whether it wishes to remain a united kingdom. The succession of Scotland from the UK would produce its own round of legal nightmares.

Second, “the media” is changing so rapidly – particularly as traditional outlets converge and merge into the internet – that it may be beyond the ability of legislators to keep up with those changes. The McAlpine defamation saga is a case in point. Who does he sue? The tweeters? The re-tweeters? Under what jurisdiction does he sue foreign re-tweeters? And if he is unable to sue individuals who are subject to foreign jurisdictions, how can he protect himself from the lingering effects of the defamation? Would the UK be willing to apply internet filters to stop domestic surfers from accessing references to him on sites hosted outside the UK? Would such filters work? Ask the Chinese.

Prince William’s efforts to prevent the publication of topless pictures of his wife is another example of the difficulties of controlling content on the internet. He was unable to stop the pictures appearing in foreign print media, and no doubt they are still out there on the internet today for those who could be bothered to find them.

As far as the internet is concerned, Great Britain is not an island. So any law designed to protect individual rights can only be partly effective as long as the internet continues its current path towards domination of the media. Unless, of course every foreign jurisdiction can be persuaded to pass similar legislation. And that will never happen.

So any proposed unified media law passed in the UK will inevitably occupy its creators for a long time, and is only likely to be partially effective. And my guess is that no UK governement will make the effort any time soon. That’s the price we pay for living in a wired world.