A free press: sidelining the threat of private and corporate power

By Simon Barrow
March 18, 2013

The disagreement about Leveson purports to be a debate about 'press freedom'. In those terms, it is monstrously distorted. Powerful interests are disingenuously trying to portray as lingering 'state control' a reasonable attempt to give an arms-length independent regulatory framework legal underpinning as a matter of last resort.

Meanwhile, those shouting loudest are almost completely ignoring (sometimes deliberately so) the genuine and serious menace of commercial, private and corporate dominance in government, through the large political parties, and in the ownership and running of large chunks of the Fourth Estate.

Tom Pride has put the matter in colourful fashion: "The vote in parliament [tonight] is not about freedom of speech or press freedom. It’s about the right of exactly four billionaire press barons – most of whom don’t even reside or pay taxes in the UK – to freely lie and play fast and loose with the truth about whoever and whatever they want. The majority of the national UK press is owned by just four people – Lord Rothermere, the two Barclay brothers and Rupert Murdoch."

This is why the papers and other news outlets owned by these billionaires have been putting out lurid, untruthful and misleading propaganda against Lord Leveson's commission ever since it was preparing to report last year.

Some investigative journalists seem to have fallen for the alarmism, thinking that even independent regulation will be a threat to their freedom to report. There is, indeed, a genuine concern about the protection of journalistic sources within the Leveson package, arising from a possible misapplication of suggested requirements for transparency about interests and lobbying. That is an important matter and needs to be addressed carefully. It also needs to be distinguished from the kind of regulation against abuse that all professions need, which should include (as the NUJ has frequently argued, and as Leveson recognised) a conscience clause in contracts for journalists.

However, the idea that an independent co-regulatory body underwritten by legal weight (Leveson's central proposal) is necessarily dangerous remains confused and mistaken, as Jacob Rowbottom, a Fellow in Law at University College, Oxford, has suggested in a helpful paper entitled ‘Leveson, Press Freedom and the Watchdogs’, which will shortly appear in the journal Renewal, volume 21, number 1. In an accompanying article for the International Forum for Responsible Media, he explains:

The opposition to the statutory underpinning is also based on a type of prophylactic rule – that is David Cameron’s Rubicon, in which he argues that no part of press regulation should be enacted in statute. This is also based on a separation of powers type of argument.

The argument runs that the primary function of the press is to act as a check on government and Parliament, exposing abuses of power. If government or Parliament exercise control over the press, then there is a danger that the press will be muzzled and suppress their criticisms. Most people would agree with the argument so far. However, the critics of statutory underpinning go a stage further. The argument goes that we need to guard against those laws targeting the press that do not appear to threaten the watchdog function, for fear that it may set a precedent or that the law may be amended in future. It is therefore a prophylactic rule in so far as it over-protects press independence from legislative intervention to prevent the slightest risk of government and parliamentary control.

Of course, some commentators have pointed out that there are already legislative controls on the press. For example, in the Defamation Bill, MPs have decided what standards journalists must fulfill to rely on the responsible publication defence. Furthermore, it has been noted that the proposal for underpinning the new regulator by Royal Charter poses at least as much of a threat to the separation between government and the press as legislation. However, putting these points aside, there are a couple of further points we can make about the separation of powers arguments for press freedom.

First, the prophylactic rule assumes that legislative power is the central threat to press independence. However, we might respond that there are other threats that the press may face, which come from private sources of power, such as pressure from advertisers or from a newspaper’s parent company. In some cases, legislative action could help protect the press from such private influence. For example, in his discussion of media plurality, Leveson suggests that those newspapers with a ‘substantial market share’ might be required ‘to ensure editorial independence both from the proprietor or owner’. While such a measure might bolster the press independence, a prophylactic rule would appear to rule out such a measure if it is imposed by law.

Furthermore, the private power of the press is open to abuse. The statutory underpinning proposed by Leveson seeks to provide an effective channel of accountability to deal with that problem. The prophylactic view appears to rule out statutory measures (or if we are to take the separation of powers argument seriously, any government powers) that might address these concerns for fear that it might provide a channel for pressure from the politicians. It therefore treats the possibility of government influence as so great as to automatically outweigh private threats to press independence and the abuse of press power.

That puts the matter well. One might add that there may indeed be a 'state threat' to freedom of expression in Britain, but that does not come from Leveson, it comes from the Conservative Party's repeated assertion that, if it gets back into government, it will seek to dismantle the rights framework which acts as an essential bulwark against abuses (including any that might arise from the use of regulations effecting the press) by abolishing the Human Rights Act and withdrawing from the European Court of Human Rights.

There is an important discussion to be had about whether it can really do that, but needless to say Mr Cameron's allies in the media, including the Murdoch empire, will not be the slightest bit worried about the erosion of such fundamental freedoms. Rather, they will be egging on the government to get rid of human rights protections. This illustrates what their true agenda is and why it is they, not those backing the core Leveson proposals, who are the real threat to freedom.

* 'Leveson, the Press and the Separation of Powers': http://inforrm.wordpress.com/2013/03/06/leveson-the-press-and-the-separation-of-powers-jacob-rowbottom/

* 'Leveson, Press Freedom and the Watchdogs' (downloadable *.PDF): http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2228712

* 'Just 4 billionaire tax exiles – friends of Cameron – will benefit from weak press regulation': http://tompride.wordpress.com/2013/03/17/just-4-billionaire-tax-exiles-friends-of-cameron-will-benefit-from-weak-press-regulation/

* Leveson, the press, and un-free corporate interests: http://www.ekklesia.co.uk/node/17496

* More on Leveson from Ekklesia: http://www.ekklesia.co.uk/leveson


© Simon Barrow is co-director of Ekklesia. He has worked in media and journalism, alongside theological education, politics and ecumenical involvements, since 1980. He is an active member of the National Union of Journalists (NUJ) in Edinburgh.

Although the views expressed in this article do not necessarily represent the views of Ekklesia, the article may reflect Ekklesia's values. If you use Ekklesia's news briefings please consider making a donation to sponsor Ekklesia's work here.