Perils of regulation

A free press that is able to operate without fear or favour remains an essential cornerstone of a modern democratic society. It plays a fundamental role as the guardian of public interest. By the same token, when certain deficiencies in its role become apparent, public and political furore is inevitable. So it came to pass in Britain, where public anger emanating from a single action — the hacking of the mobile phone of a murdered teenager — sparked off the wide-ranging Leveson inquiry, which examined the culture, practices and ethics of the press.

The recent publication of the inquiry's report represents a watershed moment for the British press. It has ignited a passionate debate over the appropriate model of press regulation, which ought to resonate beyond Britain. Some degree of reform to press regulation in Britain will be unavoidable as a mechanism for independent oversight must be devised. Yet the potential incursion of the state into this domain would mark a slippery slope toward statutory control and interference that deserves to be firmly resisted. It would be far better for the industry to swiftly reach a consensus on shaping a genuinely independent, self-regulatory model.

At the outset, it's worth highlighting that Lord Justice Leveson's inquiry was a model of process and transparency. The inquiry's voluminous report of approximately 2,000 pages encompassed nine months of hearings. Almost all of the evidence is and has been available to watch, and daily transcripts have also been published online. The inquiry represented the most concentrated review of the press that Britain has experienced.

Its scrupulous examination of the facts has elicited a general agreement among the victims of press malfeasance and the advocates of press freedom that regulation of the press needs to be reconfigured. The inquiry exposed the shortcomings of

the current structure, in which the Press Complaints Commission, despite having held itself up as a regulator, was no more than an ineffectual body that handled complaints and lacked independence.

Accordingly, the Leveson report recommends the establishment of a genuinely independent and effective system of self-regulation. It suggests that an independent regulatory body be established, with the dual role of promoting high standards of journalism and protecting the rights of individuals. In order to ensure independence, it proposes that the board and chair of the regulatory body all be appointed through fair and open processes. The board should comprise a majority that is independent of the press yet include a sufficient number of people with experience of the industry. The latter may be former editors and senior or academic journalists, but they cannot be serving editors or members of parliament or the government.

The new body and the industry would have to agree on the question of funding. Submitting to the supervision of the regulator would be voluntary but participation would be incentivised by the prospect of belonging to an arbitral system that would give significant cost and damages advantages in libel or privacy actions.

However, the most controversial feature of the report is a recommendation for legislation to underpin the independent self-regulatory system. Leveson takes pains to note that what is proposed is an "independent regulation of the press organised by the press, with a statutory verification process to ensure that the required levels of independence and effectiveness are met". Be that as it may, the report does not take into account the possibility of a well-meaning statutory intervention today being reshaped incrementally in the future into a charter of overzealous encroachment and control. The road towards state control tends to begin, as ever, with mild intentions.

Other facets of the report are questionable too. Proposals to tighten data protection laws so that journalists could collect personal information only when they intended to publish it could hamper investigative journalism. The idea of the Office of Communications, the broadcasting regulator, supervising the proposed press regulator seems to conflate two different regimes without thinking through its institutional implications. The elephant in the report is the absence of specific commentary on social media and the internet. By focusing solely on the press, the report overlooks a broader reality.

In Britain, the political fallout from the report has seen the Labour party and the Liberal Democrats unified in supporting legislative underpinning, while the British Prime Minister David Cameron has, to his credit, refused to "cross the Rubicon". It ought to be possible for the broad scheme of independent regulation advanced in the report to be implemented without statutory backing. It now falls to the newspaper industry to urgently reach a consensus and deliver a model of independent regulation that can assuage the public. The cause of upholding the principle of freedom of the press — whether in Britain or elsewhere — deserves no less.

The writer is a London-based lawyer, express@expressindia.com

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