The Law is an Ineffective Mechanism to Curb the Culture and Ethos of the British Press

Published on October 20, 2015

It is clear from the reaction to press journalism’s unseemly methods of investigating stories that the rights afforded to the press to protect the furtherance of their duties, at one time perceived as inviolable, have been called to question.

Some of the events that led to the institution of the Leveson Inquiry in 2011 offer an insight into the culture and ethos of the press in Britain at the time: the vilification and defamatory treatment of Christopher Jefferies by the press in connection with the murder of Joanna Yeates; the hacking of the voicemail of murdered schoolgirl Millie Dowler, giving her parents false hope about her wellbeing; and the months of speculation surrounding the McCann’s involvement in the disappearance of their daughter, Madeleine.

The Leveson Inquiry, a judgeled public investigation into the culture, practices and ethics of the British Press, was initiated after the News Corp phone hacking scandal. After holding several painful public hearings throughout 2011 and 2012, the Inquiry produced the Leveson Report, comprised of four bulky volumes. One of its conclusions was that there was little accountability in modern society for the excesses of the press.

This led to a press culture that viewed the violation of privacy – often to a shocking degree – as a permissible means to an end. The Report recommended, among other things, the creation of a statutebacked independent watchdog with the power to sanction its members for breaches of its code. As shown below, the imposition of additional laws alone is unlikely to result in a change to press practice. It is clear from the long fight for press freedom in Britain that the perceived selfrighteousness was not undeserved.

The power that the press yields in our society cannot and should not be underestimated. First termed the “fourth estate” by Edmund Burke, its moniker suggests that its power was – and continues to be – at least equal to that of the other traditional estates, the Commons, the Lords and the clergy.

Following on, it was then clear from at least as early as the eighteenth century that the press played a pivotal role as a mechanism for disseminating information, publishing opinions and instigating the fight against tyranny, although this latter function has arguably diminished in the West. Its role has been a pseudoconstitutional one, moderating governmental powers and protecting the interests of the public.

Nevertheless, as with any major unchecked force in society, the privileged position of the British Press has grown increasingly out of alignment with public sentiment and the public interest. It was therefore unsurprising that the journalistic response to the Leveson Inquiry was not meaningful selfreflection, but rather a selfcomforting discourse that affirmed the importance of the press, downplayed the culpability of the industry as a whole, and maligned the impending collapse of free society.

Although the Leveson Report and the Coalition Government’s subsequent Royal Charter seek to redress the balance and rein in some of the worst practices of the press, these practices cannot be changed without the cooperation of the press at large.

Considering that the journalistic response involved minimal selfreflection and selfcritique, it may be some time before meaningful cooperation in reforming and self governance can be expected.

Any attempt at reform must recognise what laws already exist to protect the public, and consider why they have failed. In that respect, it’s worth remembering that phone hacking was already a criminal offence when it occurred, and that no change in the law was required to prosecute those suspected of being involved. However, the widespread nature of this practice, and other abuses that constitute conduct such as harassment, suggest that the mere threat of criminal punishment did little to curb such illicit press behaviour.

To be a proper deterrent, law must be coupled with a determination to enforce it, but lawmakers and the Government were and still are hesitant to make enemies with the group that has control over what news the public reads. As Leveson put it, “not only are the press powerful lobbyists in their own interests, but they wield a powerful megaphone with considerable influence.” Tony Blair, for example, has spoken of the fear he felt in criticising the Daily Mail directly, worried what they might do to him and his family.

The press appears to recognise, and has taken advantage of, the political difficulty in reforming journalistic freedom. Despite the Leveson Report’s recommendation for a regulator, Prime Minister David Cameron refused to “cross the Rubicon” and legislate for a regulatory body underpinned by statute. He nevertheless went on to get crossparty agreement for a Royal Charter that provided for a new press regulator, membership of which is entirely voluntary.

Despite this highly diluted compromise, the press tried to obtain a lastminute injunction to stop MPs seeking the Queen’s approval for the Charter.

After failing in the courts, the Independent Press Standards Organisation, a body representing a majority of the UK press, ruled out applying for recognition from the new regulator. The government body has for all intents and purposes been usurped by an organisation run by the press and for the press: precisely the problem that the Report intended to prevent.

Equally, the public has been slow to advocate for change. Although the phone hacking scandal caused widespread shock, there continues to be an undeniable demand within British readership for the latest exclusive or gossip piece. Indeed, it is unlikely that the outrageous methods employed by journalists that led to the Inquiry would have occurred if those involved did not think they would make a profit.

This last point is crucial, because it was not the threat of criminal or civil proceedings that brought down the News of the World, nor the instigation of a public investigation.

Rather, it was the visceral moral outrage of the public; and, if one were to be cynical, the likely view of News Corp. that shuttering its subsidiary was the only way to mitigate the reputational harm damaging the company’s bottom line.

Similarly, it was probably the fear of decreased profits from lawsuits and morally angry customers that prevented British tabloids from printing topless photos of the Duchess of Cambridge in 2012.

One possible solution to undermine the financial incentive to misbehave is the new provision in the Crime and Courts Act 2013 allowing for exemplary damages against the press. However, such damages will only be awarded in exceptionally serious cases, where the defendant has “shown a deliberate or reckless disregard of an outrageous nature for the claimant’s rights.”

Ultimately, these rules may punish some offending publications, but as long as the public want to read stories that are invasive of the privacy rights of others, the press is likely to make a business decision in favour of chasing those stories.

Currently, with celebrities and royalty being the primary victims of press excess, it is understandable that the public does not generally feel harmed by media intrusion. However, the right to privacy is increasingly discussed in relation to ordinary members of the public – whether in the context of government surveillance or data collection by internet companies – and it is likely that demands for greater individual safeguards will change both the attitude towards privacy, and the legal ramifications for its violation. It is therefore foreseeable that, in the nottoodistant future, the right to be left alone will trump demand for the latest scoop.

The Author

Themis Think Tank.