Thursday, 24 November 2011

On Media Regulation; The Baby, the Bathwater and the Public Interest

I was watching BBC Question Time last night and as has so often been the case it was striking how poorly the debate over media regulation was constructed. Time and time again opposition to a law of privacy was conflated with concerns over 'media standards', government control or censorship was conflated with independent regulation and any reasonable discussion of how we could achieve a sensible compromise was neglected. Yet in spite of all this important reforms of the press can and must be contemplated.

First and briefly--I don't want to turn this post into a debate over privacy, as that's a sufficiently separate and significant issue on its own-- it is worth noting that a law of privacy has been crystallising through the Human Rights Act via the ECHR and subsequent case law. It already exists. It is also fairly easy to envision exceptions and defences to a breach of privacy which could operate within any legal regime concerning privacy, such as the public interest defence, a concept which already exists and operates in the law, and whose role and range of action could be changed to suit desired parameters. The right to freedom of expression, which also already exists, is to be weighed against any right to privacy as well. Rights do intrude on each other, and a reasonable balance can be struck within the law.

As regards press regulation, an independent regulator could be set up whose decisions would then be subject to judicial review if they were reached improperly, or went beyond their powers. The media would thus be able to challenge any unreasonable interference. As with all legal systems, we could expect that where the law is clear, very few decisions would be required by such a body, as a paper would avoid printing something it knew (via good legal advice) would be beyond the realm of good practice as defined by the regulator. As a result, the cost would be less than might be assumed. The composition of any such regulatory body could be decided by statute, and include a set quotient of members from the media, laypersons, lawyers, and otherwise as desired, and the appointment process could be set up in any number of ways.

It is not true that any regulatory scheme would automatically result in some future politician controlling the press-- this is an absurd and laughably extreme argument.

Setting up a strong mechanism of redress for individuals is a paramount concern. The Leveson enquiry has revealed what I think most of us already knew: that even when acting within the law the press has been deceitful, ruthless and often malicious in the pursuit of their own interests. It is critical that ordinary individuals are defended from this-- not everyone can afford the lawyers' fees. Even had the PCC worked in the way most of us think it should have, the incentive to corrupt, evade and circumvent self-regulation is enormous in a highly competitive business.

There is also a broader concern. The press are important to our democracy, and not just for "holding politicians to account", though this is an important role. They allow the average person who is too busy to keep abreast of data, public policy performance and science to form opinions and decide who to vote for. There should be a mechanism whereby-- in the public interest and with suitable safeguards-- media organisations can be challenged for *willful* inaccuracies and misrepresentations. This would need to be a difficult bar to pass, demanding a strict test. Such a statement or representation would have to be intentional and serious and weigh upon an issue of public interest.

Such a test would be best administered by the courts, and the trigger for such a case would most likely be that a public agency, perhaps the same independent regulator, would take such a case to the courts where there was a significant demand backed by material evidence, and where they believed in accordance with legal advice that the test mentioned above had been met, and that there was a high chance of winning the case. As a result, in reality such cases would rarely be launched, as a lot of criteria would have to be met before they could proceed.

It would however be beneficial to keep the press honest, and to provide a deterrent for them in willfully misinforming the public.

Everything I've mentioned here could certainly be implemented, it is not beyond the reach of (wo)man's genius.  Certainly people far more knowledgeable than me need to work out the details, but there is no good reason any of these reforms could not be introduced without impairing freedom of the press, and it is very important that there is a greater movement to advocate these reforms as the enquiries continue. This is a rare opportunity.