Britain’s laws weren’t designed to produce ethical journalism, but to defend against damaging journalism. This means journalists don’t have any incentive to act responsibly in the current system. If we really want responsible journalism we must clearly define it: press freedom should be enshrined in statute and it must hinge upon criteria for responsible journalism. This would give journalists a real reason to act responsibly and judges the legal firepower to properly punish those who don’t.

The Leveson Inquiry was set up because journalists broke the law: phone hacking is illegal, as is bribery, as is obtaining medical records without permission. Stronger regulation will not stop rogue journalists from breaking the law – what is needed is for the courts to properly punish those who do.
The law actually already has a huge say over press ethics: breach of privacy, copyright, contempt of court, reporting restrictions on sensitive issues (from juveniles to state security), including injunctions and super-injunctions, defamation… The Reynolds defence, used to defend against claims of libel, even goes so far as to set out ten points that can demonstrate journalists have behaved responsibly. But it’s a new and often a murky area as judges seek to balance freedom of expression with the right to privacy. The concept of public interest is barely addressed: there is no public interest defence for journalists in court.
The biggest problem at the moment isn’t phone hacking: it’s that the laws governing journalism simply aren’t strong enough. It’s not rare for a newspaper to make more money from a libelous story than it loses in damages, or for the apology the courts demand to be found in tiny font buried deep inside the newspaper. How much more careful would newspapers be if their apologies had to take up the entire front page (that’s a lot of lost sales!) or they actually had to pay much higher damages?
The difficulty, of course, is that nobody wants to have a chilling effect on free speech because newspapers become too afraid to publish. Britain’s draconian libel laws are already heavily criticised for doing this ( and “no win no fee” lawyers don’t help). While it might seem counter-intuitive to do so, creating a true public interest defence for journalists (for any area of law) would allow the courts to be far stricter and force journalists to check their work fulfils the ethical criteria needed to be able to use such a defence.
Everyone agrees the Press Complaints Commission (PCC) is toothless, and plenty of people criticised it for being so long before Leveson came along. It should not be used as smokescreen for the law not coming down hard enough on irresponsible journalists. Phone hacking is, as I already mentioned, already against the law. The entirety of the PCC Code of Practice is in fact already almost entirely enforceable by law, with just two exceptions arguably provide more ethically just protection than the law does:
– The press must not, even if legally free to do so, identify children under 16 who are victims or witnesses in cases involving sex offences.
– Journalists have a moral obligation to protect sources.
Arguments have been put forward many times to give the PCC more bite. Pointing at the PCC and using it as an excuse to regulate journalism through statute is misguided when we haven’t even tried to repair it. This is why I find myself in rare agreement with David Cameron when he says the press must be given time to get its act together and enact its own changes. Make no mistake, Britain’s press is one of the most vibrant and respected in the world. Ending over 300 years of a free press by introducing statutory regulation, whatever the format, would be the thin end of a wedge that ultimately end this.
Article originally written for & published on the Speaker’s Chair website.