Towards the end of next month, the Leveson Inquiry into the British press will turn from its current, revelatory phase about media relationships with politicians and address again the knotty question of regulating journalism.
The inquiry’s most basic dilemma hasn’t changed: how to prevent and discourage the wrongs which have occurred without tipping over into state control of the news media. When he has grown bored and irritated with an editor waffling vaguely about how things will be improved by a few light adjustments to the present rules, Lord Leveson usually asks one of two questions and sometimes both: what would you actually do? will what you suggest command public confidence? Next month will bring forth a slew of ideas for regulation designed to work better than the much-abused self-regulation of the past. Legal and media experts are busy putting the finishing touches to better mousetraps.
The problems of “toughening” regulation are much greater than supposed, as I’ve argued here (£). Not least because regulation deals with sorting out things that have already gone wrong. What the Leveson Inquiry should also be concentrating on is how to encourage, in the culture of newsrooms, good practice which lowers the odds that bad things will be done. It should also look at whether the issue of regulation isn’t as much a question of legal process as much as one of regulatory machinery. That is to say that contributory factor in the accumulation of problems and resentment has been the cost and delay of taking legal action over libel or invasion of privacy. In this article I suggest that there is a way to interlock the rules of both law and a regulator to create a powerful incentive for journalism to rely less on tricks and illegalities.
If journalists were offered fuller and more consistent public interest defences in both criminal and civil law, those defences could be made available only to news publishers or broadcasters who could demonstrate transparent and enforceable editorial integrity and standards. With that incentive, websites and papers (broadcasters are separately regulated) would need to organise regulation among themselves which would show that they deserved the protection of a public interest defence. Trivial, sloppy or bad journalism which can’t claim a public interest justification gets no protection; better journalism at least has that line of defence available. That strikes me as the best way round the knotty dilemma: incentives not state-backed regulation.
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