Simon Jenkins, Peter Preston and Nick Cohen have all written vigorous dissents of the Leveson agreement in (on?) the Guardian this week.  Preston laments the vitriol that has infected the debate; while Cohen vents spleen at liberals with short-term aims of binding right wing tabloids at the expense of basic freedoms. Simon Jenkins rails against one-sided justice drawn up by victims.

All of them claim a victory for the establishment. Preston asks what

“independence” means in a quangoid Britain where the same cast of great and good characters, retired judges, retired permanent secretaries, Oxbridge dignitaries, shift sweetly from one padded committee seat to the next ?”

And then Cohen:

“Did you not notice that Leveson hurt no one in power? …Can you not see an establishment stitching up a winding sheet for our freedoms in front of your very eyes?”

And Sir Simon Jenkins:

“the cheering across town this week is from the rich, the celebrated and the powerful”

This is a classic example of the maxim that power is always somewhere else. As Peter Jukes tweeted it :

“Fleet Street bias and entitlement is a bit like white privilege, invisible if you’re an unconscious beneficiary of it.”

The three of them are in the privileged position of being given a platform from which, week in week out, they can shout out whatever they like right across the establishment and reach every sympathetic influential ear.

Their unusual freedom blinds them to the fact that the press is a very long way from being a conduit of free expression.

Most of newspaper circulation is run to maximise profit.  The Guardian is almost unique in being subsidised from a trust established to serve “the liberal interest”.   That is not to say that other newspapers are not subsidised, many of them are, but that’s because they serve other private interests.  When he was the proprietor, Irish press baron Tony O’Reilly spoke of “the value of the Independent [which has never made a profit] as our calling card”.  Now it is owned by a persecuted Russian oligarch with legal problems.

The mass circulation papers that are not subsidised are in an endless war to gain the maximum readership and accompanying advertising revenue at minimum cost.  Educating voters about the way they are governed has very little room in this model. It’s expensive, and it’s dull. Lose, lose.

The exception is around government policy that affects the business model, where the savings from favourable policies cover the costs of being dull and expensive. This applies to press regulation as it does to tax policies affecting the owners -  e.g. rules on whether media owners can be non-domicile or non-citizens.

In a competitive market economy, not pressing advantages to their limit leads to business failure.  With the internet, competition in the news industry has intensified. In this environment it is nonsense to talk of free speech.  Editing becomes a calculation process to work out what will grab the most attention and sell the most advertising.

Exaggerating, making things up and spying on people are simply things that have to be done to stay in the game. Some of it is against the law, but the law as it is, is unenforceable.  It is inevitable that newspapers will probe the boundaries of the law when there is money to be made from it. And when the police and the politicians turn a blind eye, the boundaries give way.  They turn a blind eye not because they are simply bribed and corrupted (though some are), but because they need the media to do their jobs. A big part of a politician’s job is to convince the media they are doing what’s best; and the skill of politics is in choosing the right battles. Fighting the media is always the wrong one.

But surely the competitive market means that they are all striving to give customers what they need? No not really. The real customers are not readers but advertisers (or owners with their own motives for subsidising news).  The advertisers also need to attract readers, but when I choose a newspaper, I don’t do it to make sure I vote for the right person, I do it because I want to forget that I’m on the bus. There is no financial incentive for the kind of journalism that nourishes democracy.

This, combined with the concentration of editorial control into the hands of two or three like-minded individuals, who therefore have enormous sway over politicians, means the difference between editing and censorship is academic.

Under the proposed new rules, a publisher who refuses to participate in the cheap arbitration system may be expected to pay the costs of going to court.  If they are found to be in outrageous breach of the law, exemplary damages may be awarded.  This is the incentive that parliament has created for newspapers to join the new regulator.  Cohen says this is compulsion not incentive:“even if a publisher is successful in court it will have to pay “all the costs of proceedings”. Even if you win, you lose.”

When Max Mosley won his privacy case the judge awarded him record damages of £60,000 and ordered the News of the World to pay 80% of his costs. The net result was that he lost £30,000.  Even though he won, he lost. If he had lost it would have cost him nearly £1m. On top of that, his privacy, which the judge found had been outrageously invaded, was breached again and again through the reporting of the trial as all the extra details came out in court.  The effect on his family was devastating.

There are very, very few people who have the combination of robustness, wealth, guile, and madness of Max Mosley. News International knew that once they published a story like this, it was always madness to sue.  When people did threaten to sue they threatened them back with further exposure. The whole enterprise is a calculated and minimal risk. It is a business model that works and one that was only strengthened by the Mosley case – even though he won his case it will still discourage others from taking similar action.

For Preston, Cohen and Jenkins, the journalist is always the little guy; Tintin fighting the rich and powerful. The ‘rogue reporters’ are just rascals who have got carried away.  They can’t seem to see that these are the imperial foot soldiers following orders. Even Max Mosley is a little guy when it comes to taking on News Corp. (Us real little guys would just lock ourselves in a room with a bottle of gin, or worse.)

“Fines and compensation at the arbitration stage will put editors in thrall to chief executives and nervous publishers.” Says Jenkins, who from his tiny ivory tower can’t see that they already are. Editors should be nervous about trashing peoples’ lives and reputations. What is needed is a much stronger public interest defence for journalists, even when they break the law.  That, together with the new rules would get journalists back chasing exciting stories that public actually need to know about.

The rich and powerful this week are not cheering, they are howling, and Jenkins, Cohen and Preston have joined the chorus.

Cross-posted with thanks from Labour Uncut