Leveson: remit fulfilled

The press is very likely to adopt Leveson's proposals. Despite criticism, his public inquiry into the culture, practices and ethics of the UK press has done its job.

Most of the criticisms of the Leveson report seem wide of the mark. He was asked to report on the newspaper industry, not the news industry. That the world of blogs and online publishing is dealt with only in passing is no more than we should have expected.

Leveson’s main purpose is to offer a framework for effective self-regulation of the press – not of the internet. He is under no illusions about the many economic challenges to print newspapers, especially local and regional titles. Nor does he attempt to counter the argument that the shift of readership from print to online will eventually render any print regulatory regime redundant. He simply addresses the here and now of how to replace the Press Complaints Commission.

The structure he proposes takes the Black/Hunt industry model and imposes all the obvious changes that The Guardian, The Independent and The Times have advocated. It is very hard to believe that the industry will fail to adopt his proposals. The alternatives are unattractive, including as they do the theoretical prospect of imposed regulation, directly or indirectly through Ofcom.

If Ofcom is the stick, the much-debated statutory underpinning is actually the carrot, though Rubicon-citing politicians may not have quite realised it. Ensuring that the judiciary can implement his recommendations on low-cost arbitration and high-cost penalties – applying to both sides, newspapers and complainants alike – if that arbitration is not used, is Leveson’s version of the VAT waiver I suggested as the statutory mechanism to induce participation.

As for the suggested strengthening of the Data Protection Act and the PACE rules, instant criticisms again miss the point. Leveson correctly launches his report with discussion of the total failure of the newspaper industry to respond to the Operation Motorman reports – What Price Privacy? and What Price Privacy Now? Arguably, the resistance from the media to custodial sentences for breaches of privacy (other than phone-hacking) served as a green light for the wide-ranging criminality that ensued at News International.

Even the much-lauded Guardian failed to rise to that challenge. Fears about the impact on investigative journalism – recycled from the last round of resistance to strong penalties for privacy invasion – will not wash. Victims need to know that not only will the law allow such behaviour to be severely punished, but that the newspaper industry will support tough police responses to such offences.

Those are the main items of the report, and the thrust of the argument will surely in the end force the hand of the industry and the government. They should be grateful to His Lordship for cutting through the gordian knot of statutory underpinning.

Then there are the minor issues. Leveson exonerates Jeremy Hunt, limiting his criticism to the failure to supervise the extraordinary dealings between his special advisor and News Corp’s corporate lobbyist (of which he was unaware, though that is itself rightly criticised).

He finds there was no deal between the Conservatives and News Corp over the BSkyB bid. Conspiracy theorists will continue to moan, but Leveson had all the facts before him, and judged otherwise.

Leveson also declined to suggest new limits on newspaper ownership, echoing the conclusion reached by Ofcom in two reports this year. Those media reformers for whom such limits are axiomatic will feel thwarted. They should read the Ofcom analysis.

Only in one respect does Leveson fail to keep up to the latest thinking (he even finds room to mention the Panorama on Newsnight’s failure to broadcast its Savile item). He cites with approval Ofcom’s passing interest in adjusting cross-media ownership rules to allow for organic growth. In fact, Ofcom abandoned this impractical proposition quite quickly – after all, what do you do? Subsidize failing newspapers? Penalize successful ones?

Leveson is surely right to advise police whistleblowers to beware of leaking to newspapers. Although the attempt to prosecute The Guardian’s Amelia Hill under the Official Secrets Act (for using confidential information about imminent arrests of phone-hacking suspects) was aborted, it was still foolish of the policeman to leak to her, and reckless of The Guardian to publish something that could only undermine a police investigation.

Much of the fuss in advance of publication – and since – has revolved around the idea of new statute law. Both sides forget how much statute law already affects newspapers: and the proposed new law on libel is typical of such. The heightening of penalties for privacy invasion is overdue. The strengthening of incentives to join a self-regulating system makes sense. Both sides need to step back and recognize that this is an argument about practicality, not principle.

Of course, if the newspaper industry fails to grab Leveson’s lifebelt with both hands, we may find ourselves in the murky territory of “backstop regulation”, which Leveson nominates Ofcom to undertake. Ofcom has so far shown no appetite for taking on newspapers, and rightly points out the huge difference between broadcast content rules and the much looser type of code that of necessity applies to print.

It is true that the VOD (video on demand) industry is required to work through a regulator called ATVOD, with Ofcom as the backstop. But that industry is far from enamoured with the system that has been imposed on it, and newspapers are a far more powerful, variegated and tricky bunch of clients than video distributors. Good luck with that. Leveson has a schematic for this scenario, but we would have to be very naive actually to welcome it as the answer to the problem.

Leveson’s report is far from "bonkers". The industry and the government should bite their tongues and get on with implementation.

About the author

David Elstein is Chairman of openDemocracy's Board. He is also Chairman of the Broadcasting Policy Group. He is a director of Kingsbridge Capital Advisors, and a supervisory board member of two German cable companies.