Sometimes the bastards are right


FRIDAY, JANUARY 13, 2017

Spare a thought for the galley slaves at the Department of Culture, Media and Sport. They’re now tasked with rooting through more than 140,000 public responses to the Leveson consultation, a prospect that must fill them with unbridled glee.

The evidence they collate will help ministers decide whether to implement the infamous Section 40 of the Crime and Courts Act, and whether the second part of the Leveson Inquiry should go ahead – unless, as some cynics suggest, the Government has made up its mind already.

My own response is in there somewhere, waiting to be sifted into the pile of noes (to Section 40, at least). It will be in the distinguished company of some of the worst people in the British press, and indeed in public life. They include apologists for the most egregious abuses of media power: phone hacking and the illegal tapping of personal data; the relentless bullying of public figures; the delivering of “monsterings” to people who can’t answer back; vile invasions of privacy.

A quick scour for others who have publicly come out against Section 40 delivers a list that includes Kelvin MacKenzie, Jeremy Clarkson, Richard Littlejohn and the folk at Guido Fawkes. These are people who’d be about as welcome in many houses as a rabid bat at Midnight Mass.

The thing is, they’re right.

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Section 40 means the state registration of newspapers. It’s that simple: register your newspaper with a state-approved regulator – and crucially, observe its diktats about how you conduct your journalism – or face the prospect of getting put out of business by ruinous legal costs, whenever someone decided to sue.

The law’s supporters make the point that signing up would be voluntary. In fact, it would be voluntary only in the sense of Don Corleone’s offer that couldn’t be refused. I’m reminded of a tale from when my father did his National Service, and met conscripts from remote fishing communities in Scotland. They told him that attendance at their kirk was in no way compulsory. But if you weren’t seen there, your groceries would stop being delivered, your nets wouldn’t get mended and you wouldn’t be able to buy any petrol.

Over the past weeks, debate about Section 40 has descended into a dirty war of ad hominem attacks, with such spectacles as the tabloids slagging off Max Mosley and the press-reform mediocracy slating anyone who opposes Section 40 as either acting in bad faith or being in the pocket of the media moguls.

Forget all that. Forget about Impress, IPSO, Hacked Off, Mosley, Cathcart and Dacre. The composition and funding of the regulator is irrelevant. What matters is this: once newspapers have surrendered to the notion of having a body telling them how they should do their job, backed by the force of law, we do not have a fully independent press.

(Incidentally, a question for anyone arguing that we’ve never had one because of existing laws relating to defamation, malicious falsehood, privacy and contempt of court. Do you think adding to all that with state-backed kangaroo courts applicable only to the press would make it more or less free?)

Ah, but what about libel reform, or providing low-cost arbitration to those who have been wronged in print? Great – bring it on. It’s much needed. And that being so, why should it be confined to those outlets that are designated “relevant publishers” under Sir Brian’s proposals?

Suppose the press reformers’ dream scenario came to pass, and all the national papers joined a recognised regulator and resolved to accept its edicts. Then, if you thought you had been libelled by the Sun or the Daily Mail, you would have the option of a supposedly fair and inexpensive remedy. But if you were defamed by a politician, a banker, a think tank, a lone blogger (even one who was, say, the CEO of a multinational company) or a common-or-garden troll on Twitter, this door would be closed to you.

In fact, the apparently trivial part of the proposals that determines who would fall under their jurisdiction – sorting the “relevant” sheep from the presumably “irrelevant” goats – is key to why the whole thing is so wrong. Section 40 would play merry hell with an important principle governing the media that has been built up over many centuries.

It’s that journalists are treated no differently from any other citizens. They have no extra privileges, but neither should they have any additional statutory responsibilities, or potentially be subject to further penalties.

Many lay people, with considerably more honesty than Hacked Off and their associates, might shrug at all this and say: “Yeah, it is state regulation. Why the hell not? After what the tabloids have done, that’s exactly what we need. Why shouldn’t newspapers be regulated like any other industry – like barristers, or gas fitters?”

Journalism is different, because anyone can do it. You don’t have to be CORGI-registered or sit your Bar exams. In the eyes of the law, publication is the same thing whether it’s to a million people in a red-top tabloid, to a hundred parishioners in a church magazine, or to a score of passers-by on a lavatory wall. This is how it should be.

Today, with social media and online publication putting a potential audience of just about everyone within reach of just about anyone, the barriers to entry have never been lower. The folly of Section 40 is clear. Hacked Off and their allies are not only on the wrong side; they’re still fighting the last war.

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So how do we get the press to behave itself? That’s one for another time. But for God’s sake, not like this. However much the bastards might agree.

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