Times Law award announced for essays – Privacy and press: is state regulation in the public interest

March 24, 2013 |

The UK Times has published the award winning and second and third winnings essays of the topic Privacy and the press: is state regulation in the public interest. They are found here.

They provide:

On May 10, 1768, the crackle of musketry tore through a crowd that had gathered at St George’s Fields. The imprisonment of John Wilkes for seditious and obscene libels had helped to trigger widespread protests against the Government, and the St George’s Fields Massacre was but another bloody milestone in the broader struggle for civil and political liberties in Britain.

Wilkes was not a wholly sympathetic character. A bawdy womaniser, occasional MP and radical journalist, his writing veered between passionate criticisms of the Government and downright obscenity. A practical joke of his involving a baboon dressed as the Devil started a feud with the Earl of Sandwich who, in retaliation, read a pornographic poem in the House of Lords and attributed it to Wilkes. Wilkes fled to Paris, was convicted in absentia, and on his return was incarcerated. However, that he found himself in prison was not the result of his pranks but because of journalism that the Government wanted to silence.

In short, freedom of the press was not won overnight, but built over many years in the face of state interference and intimidation. The strong and independent press that this freedom guarantees is a vital part of a free society as a means of ensuring — and enforcing — transparency and accountability. It is a freedom that is inherently linked with the freedom of speech and should not be bargained away cheaply. Despite the near Maoist zeal for permanent revolution inherent in contemporary British political culture, it is important to remember that an aversion to the status quo is not sufficient justification for change: rather, a positive case for that change must be made. While the uncovering of wide-scale journalistic phone-hacking in 2011 raised questions about the culture, practices and ethics of the press, the resulting clamour for something to be done risks obscuring several important issues.

Firstly, it is important to recognise the extent to which the behaviour in question is already regulated by statute; indeed, much of the activity under scrutiny was plainly criminal and should be dealt with accordingly. Furthermore, there already exist multiple grounds on which a civil remedy may be sought. Developing this theme, we must question the sufficiency of this existing legal landscape and the rights contained therein: certainly, the cost of litigation is a barrier that militates against the individual bringing a civil action but does this make the range of rights themselves inadequate? Crucially, we must ask what state regulation would look like and whether it would serve the public interest.

It is possible to describe three distinct components of state regulation: (1) a set of rules; (2) a regulator to enforce them; and (3) remedies to punish breaches. Assuming that rules are most likely to govern practices, what practices should be verboten beyond those that are already criminal, what additional civil actions should be available and who is to be subject to these rules?

In answering the request for new rules and rights we must be careful. France enjoys some of the most stringent privacy laws in the world, yet they were entirely useless in preventing the widespread dissemination and eager inspection of pictures of the Duchess of Cambridge’s breasts. Indeed, here we uncover a fundamental problem: an abstract right is useless when set against a real inability to enjoy or enforce it. The reality then is not that we need new rights but rather better means of enforcing existing ones. In this context, a state regulator as guarantor and enforcer is not without problems.

Recently, the regulation of ITV by Ofcom did nothing to protect the rights of people falsely linked with child sex offences by a presenter on This Morning. Where, however, a state regulator was ineffective, the prospect of multiple libel suits has subsequently ensured more stringent editorial procedures.

After we consider the State’s ability to punish criminal acts, grant injunctions and award damages, what additional remedies, if any, would we like to exist? Gifting the State a right to censure and censor the press would be intolerable. As with rights, the argument must instead focus on the law as it stands and ensure that individuals whose rights have been infringed can seek a remedy. While problems of access to justice are well-documented, they are a function of poorly thought-out reforms to legal aid that cannot be rectified by state regulation.

The overarching trajectory of contemporary journalism is one in which the line between mainstream and social media is becoming blurred to the extent that anyone with an internet connection can now be a journalist. The role of social media in highlighting the plight of Mohamed Bouazizi, the Tunisian fruit-seller whose death helped to catalyse the Arab Spring, only reinforces this fact and on a simple point of principle, attempting to regulate what is otherwise normal public discourse is wholly undesirable.

While it is perhaps ironic that the modern press has been accused of wielding the kind of unaccountable power that early journalists used to rail against, to fix on this is to miss the point. Power is best kept in check by individuals who are able to enforce their rights against its misapplication rather than a state regulator empowered to sanction, silence, and suppress.

A free press, much like John Wilkes, may be occasionally bawdy, frequently provocative and sometimes offensive: it is nevertheless a vital part of a free society. Today, an anonymous roundabout in Southwark is all that marks the site of the St George’s Fields Massacre. But the freedom of the press established in the intervening years is a fitting memorial to those who died there and it is this freedom, not any illiberal attempts to curtail it, that best serves the public interest.

Second-prize essay by Lara Hassell

In between all the sorry tales heard in the Leveson inquiry, the worst-off individual by far is Lord Leveson himself. He is caught in the midst of a fierce if familiar battle between two great articles of the European Convention on Human Rights: that of the freedom-fighting Article 10 and the privacy-protecting Article 8.

While other judges have been faced with the same battle in the courtroom, they have been able to steer a rickety course through the battle on a case-by-case basis, determining when breaches of privacy are too flagrant to stomach, and when defences of public interest ought to succeed. Lord Leveson has no such choice. He must recommend a policy applicable to all cases. He must, in essence, decide what balance between the two articles is necessary for the public interest.

Both sides have deployed powerful arguments. The press has argued that freedom to publish any information is essential to a democracy. Those advocating state regulation maintain that methods of information collection deployed by some journalists are an affront to people’s privacy. What most of these commentators have apparently failed to realise is that, on the whole, they attack different points. The same decision need not apply to both published content and methods of researching that content.

The press are right to argue that regulating what they may legitimately publish is not in the public interest. Occasionally a revelation by the press is of fundamental importance: the exposure of the MPs’ expenses scandal in 2009 is a good example.

The rarity of such exposures possibly demonstrates what an effective deterrent publication can be. Perhaps without that threat, there would be no safeguard to keep public figures from behaving dishonestly. It is no defence to argue that much of the content published in the press has no relevance to how well public figures perform their jobs. Different information is important to different people: only members of the public can decide whether the information is relevant, and they can only do so if they have access to such information.

It would appear that any regulation of content needs to be expansive rather than restrictive. Tony Blair’s complaint in the Leveson inquiry was that if public figures offend a section of the media they are “effectively barred from getting their message across”. This is a serious problem if in fact true. The arguments of 19th-century theorists were based around the importance of the press to lively political debate. Article 10, likewise, enshrines the right to “receive and impart information and ideas without interference”. If the allegations are true, therefore, it suggests that the most ardent supporters of Article 10 have forgotten that their function is not merely to hold public figures to account: it is also to encourage lively debate – a necessary ingredient of which is to allow political opinion. Any state regulation of the publishable content must not focus on what the press cannot publish, but what they cannot refuse to publish.

The relationship between how the press gathers such information and the public interest is another matter. Some journalists have failed to respect any boundaries of privacy, even those imposed by statute. Worse, during the Leveson inquiry they have failed to produce a single example of where their illegal breaches of privacy produced a story of public interest. This must be better regulated; laws cannot apply to some individuals and not to others. As Ivor Jennings argued, “if everybody is free to do as he pleased there is no liberty for anybody to do as he pleases”.

The greyer area consists of those methods deployed by some members of the press that are not illegal but which are, to most people, morally repugnant and a gross invasion of privacy.

Article 10 cannot unquestionably trump Article 8. Everyone, regardless of whether they are public figures or private individuals, is entitled to some element of privacy. When we agree to remove that right from some individuals, we risk the line being extended beyond our control. Maintaining everyone’s right to privacy is essential to the public interest because otherwise every member of the public is at risk of having that right removed from them.

“Press hounding”, however, cannot be easily regulated. Such regulation risks the concealment of public deception. A politician’s affair, for example, which throws his integrity into question, is more discoverable if members of the paparazzi are following politicians constantly as a matter of course. It is clear self-regulation has not worked – the temptation of several thousand pounds for a single picture is too much. Yet it is hard to accept that state regulation is the answer.

Nor is the awarding of damages for gross breaches of privacy sufficient. Such judicial regulation compensates only when the damage has already been done. What can be done for those individuals who, aside from their public role, lead a thoroughly unexciting life that means nothing of a private nature is ever published about them, but they are nonetheless subjected to press hounding “just in case”? This is the conflict between Articles 10 and 8 at its core.

It is a conflict that cannot be resolved in a way the Leveson inquiry is expected to do. There is no question about what the press can legitimately publish – any state regulation that attempts to be restrictive is certainly not in the public interest. Yet the methods of gathering information are trickier. While existing laws must apply to everyone, the line between the public interest and privacy is murky at the end governing less obvious breaches of privacy.

This line cannot be regulated by statute, however unsatisfactory this might be for those with no claim to bring to the courts. The area is grey for a reason. To bring it into sharp relief risks either public deception or the removal of a fundamental human right from some individuals.

Yes, poor Lord Leveson. He is expected to draw such a line.

Third-prize essay by Gillian Hughes

The right to privacy is a fundamental human right enshrined in the European Convention on Human Rights. Under current UK law the right to privacy can be compromised if it can be shown that to do so would be in the public interest. In the digital age there is controversy as to what the term “press” actually constitutes.

Sources of news now include newspapers as well as tweets, blogs and posts via social media. This essay will argue that, since self regulation as offered by the Press Complaints Commission (PCC) can no longer be regarded by the public as a credible method by which to regulate the press, some form of state regulation is required in order to safeguard the right to privacy of the public. At the same time, the freedom of the press, under which journalists enjoy the freedom to report on matters of public interest, need not be compromised. In this way regulation underpinned by statute should be embraced by the public and need not be feared by the press.

First, this essay will question why the need for a new system of press regulation has arisen since ultimately it is the answer to this question which offers support to the view that, in the public interest, a new system underpinned by statute is required. The Leveson inquiry, set up in the wake of the phone-hacking scandal into press ethics, has exposed the fundamental weaknesses in the current system of self regulation. Namely, that the PCC lacks the power to enforce its own rules thus enabling the newspapers to avoid all ethical and legal responsibilities. Clearly the PCC can no longer be upheld as an effective method by which to ensure ethical conduct of the press. Hence statute is necessary in order to ensure a regulator has sufficient clout to be effective. Further, to truly require publishers to join the system would require statute.

Moreover concerns that press regulation underpinned by statute may impinge on the freedom of the press — the bedrock of a democratic society — are unfounded. It would be possible to enshrine in the law the regulator’s independence from both the government and the newspaper industry.

There is evidence to support this claim. Our judges, appointed under statute, remain independent. It is also notable that the content of broadcast journalism is regulated by Ofcom, which derives its authority from the Communications Act 2003, yet broadcast journalism remains trusted by the public and, in the case of the BBC, routinely hated by the government. Further, press regulation by statute would not represent the first time that newspapers were restrained by law; newspapers can be sued for libel; they can be prosecuted for contempt of court or for breaking the Data Protection Act and they must register with tax authorities.

There are other countries struggling with the same dilemma. Namely, how best to curb the worst excesses of journalists without curbing the freedom of the press or giving government undue influence.

This essay will briefly consider the Danish model of co-regulation whereby complaints from readers are handled by a press council set up by an Act of Parliament, whose members are government-appointed.

The council compiles the press code of ethics and, on receiving complaints concerning breaches of this code, the council can go to court to ask for the paper in question to be fined. While some may argue that such government oversight and a free press are mutually exclusive, this is not the case. Denmark offers tangible evidence that a fully functioning democracy, which values press freedom highly, together with statutory regulation, is possible.

The Rubicon argument, that Parliament may enact an innocent-looking law today which may then be exploited by a future government to suppress the press, fails to withstand scrutiny.

If, as this essay advocates, the independence of a press regulator was enshrined in the law then any future government seeking censorship powers would be in the same position with or without a regulation law: it would need to get a bill through Parliament.

It is worth remembering that if the UK was to find itself under the rule of an authoritarian government our most pressing problem would be exactly that: an authoritarian government. Finally it must be recognised that this argument originates from unlikely and abstract concerns. The claim that a fascist regime might just be around the corner is unlikely. This is in contrast to the very real problem facing Britain today. The unethical conduct of the British press, which encompasses everything from relentless dishonesty, serial libel and privacy intrusion as exposed by the Leveson inquiry, can no longer be overlooked under the pretext of press freedom. It is these issues that pose a greater threat to the British public, not that of an improbable authoritarian government.

In conclusion, to protect both robust journalism and the public it is now essential that a regulatory system underpinned by statute be established.

It is paradoxical that the worst excesses of the press have stemmed from the fact that the public interest defence has been too elastic.

The press, like all other institutions, organisations and individuals in society, must be accountable for its actions. The Leveson inquiry has left two things certain. Firstly, that a free press is essential for a free society. Secondly, that there are fundamental weaknesses in the current model of self-regulation that cannot be ignored. Clearly there exists a public interest central to both of these points. However as this essay has outlined, regulation underpinned by statute would not be in breach of the former and is the most appropriate solution to the latter.

Firstly, statutory regulation does not necessarily entail a curtailment on the independence and freedom of the press. Secondly, statutory regulation is necessary to ensure that a new regulatory system will be effective.

The coalition government must seize the once-in-a generation opportunity offered by the Leveson inquiry to put things right.

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