July 24, 2012 was a watershed day for journalists in the United Kingdom. Lord Justice Brian Leveson, chair of the public inquiry into the conduct of the British press that began in November 2011, declared that the fact-gathering phase of “the task” was complete, with a promise that he and his team would complete a report and recommendations on future regulation of the print media sometime before the end of the year.
The 97 days of hearings and thousands of pages of written testimony collected by the Leveson Inquiry exposed disturbing details about too-cozy relationships between the press, politicians, and police, as well as unethical newsgathering practices, including computer hacking, bribery, and intercepting the voicemails of more than 600 individuals including murdered teenager Milly Dowler. It prompted calls for legislation that would mandate the creation of a new regulator to dictate journalistic standards, adjudicate complaints, and — perhaps — impose fines.
But the conclusion of this phase of the Leveson Inquiry was knocked off the front pages of London newspapers by the startling announcement that eight suspects, including former editors, reporters, and a private investigator, had been formally charged with phone hacking and perverting the course of justice. The London Evening Standard suggested that the complexity of the evidence, coupled with the large number of alleged victims, will turn the prosecutions into a nightmare, requiring restraining orders to prevent prejudicial publicity that would undermine the defendants’ rights to a fair trial. Trials are not expected to begin for a year or more. (For more on the charges, see “Update: Charges Filed in British Phone Hacking Case on page 25 of this issue of the Bulletin.)
The fact that the charges have been filed at all is itself remarkable, and may well have been encouraged by the Leveson Inquiry. Media analyst and journalism professor Roy Greenslade observed that “until the Milly Dowler story broke, there has been almost no interest in the hacking scandal.” But ironically, now that it appears that prosecutions will go forward, it is unclear what impact, if any, the Leveson report will have.
Demand for creation of a new independent regulator arose because the newspapers’ self-regulatory body, the Press Complaints Commission (PCC), is widely regarded as an ineffectual toothless tiger in thrall to the publishers who underwrite its operations and indifferent to complaints from the public. During the course of the Inquiry, Leveson heard testimony from Lord David Hunt, the current head of the PCC, as well as many others, about ways to beef up its authority to provide some form of alternative dispute resolution, perhaps along the lines of Ofcom, the statutory body that regulates the electronic media and is roughly comparable to the Federal Communications Commission. Yet even Leveson himself mused that “One would want to encourage everybody to have their own complaints-handling system and to deal with them efficiently,” and some newspapers, such as the Guardian and the Observer, already have their own ethics codes and readers’ editors to handle these matters. Guardian editor Alan Rusbridger told Leveson that he doubted a new regulatory body would have much impact on his operations at all. But draconian regulations could also undermine investigatory and watchdog journalism in general. The devil is in the details.
From a First Amendment-based perspective, the Leveson Inquiry seems bizarre. Prosecution of journalists — just like anyone else — for violation of laws of general applicability like those prohibiting phone-hacking, makes sense. But launching a government inquiry into improper relationships between the press and those in power with the intention of defining what constitutes journalism “in the public interest” seems risky. A July 2012 report by Index, a London-based non-profit organization that advocates for free expression around the world, noted that “Any government power or role in regulating the press risks abuses of that power including through chilling effects and potentially through more direct interference.” The fact that the Prime Minister — whose own former spokesperson Andy Coulson is one of those charged in the phone-hacking cases — will make the final determination about what will be done with the Leveson recommendations simply underscores that danger.
The rise of digital news providers, who would, in the words of Paul Staines, founder of the Guido Fawkes blog, “cheerfully ignore” any new regulations, suggests that the Leveson report has come too late to have any significant impact on journalism in the United Kingdom. But it could do real harm abroad. Although supporters of a new regulatory regime believe that enforcement in the United Kingdom will be measured and circumspect, in a July 17, 2012 letter, the World Press Freedom Committee reminded Leveson that “whatever recommendations come from your inquiry, worst case usage by repressive governments seems inevitable.”
In fact, the best case scenario might well be that Lord Justice Leveson issue no report at all.
Jane E. Kirtley
Silha Center Director and
Silha Professor of Media Ethics and Law