It's early days at the Leveson inquiry, but some pointers have already emerged. First, the conduct of a section of the British press would be unacceptable in any civilised society. Second, the Press Complaints Commission has been largely ineffective. Third, all the witnesses who have so far appeared have made it clear they greatly value a free press.
So how do we stop the outrageous abuse we heard about last week yet keep a free press? A good starting point might be to separate rule-making from rule enforcement. Imagine today's PCC as the rule-maker. There's not much wrong with its code. The problem is the almost complete absence of enforcement. The PCC cannot enforce its rules, it can only ask nicely. But rules that are not enforced are no rules at all.Enforcement of existing rules by a new body would have no effect on serious journalism or on local newspapers. But it would put a stop to almost the entire range of tabloid misconduct including interference with children, pursuit, intrusion into grief, bugging, secret filming and so on. None of these are allowed under the PCC code without a justified public interest. The rules are there. They just need enforcement.
Effective enforcement would require a statutory backstop. Otherwise a newspaper could simply opt out, as the Express and Star already have done, from the PCC. But statutory powers do not equal state control. The rules are those the newspaper editors themselves have devised. They have nothing to do with the state.
An enforcement body should be able to initiate proceedings without waiting for a complaint. It should also be able to compel mediation. Only if mediation fails should enforcement be considered. It would need the power to fine, also to order an immediate correction (specifying position, prominence and wording). In appropriate circumstances it should be able to require newspapers to leave an individual or family alone as well as ban material from a picture agency that ignored such an order. Deciding whether a breach of privacy should be published at all would be a vital part of its function.
Ideally, the procedure would be informal, involving only an adjudicator, the journalist and the story's subject. In most cases it might even be possible to operate without lawyers, particularly in the mediation phase. If the principle were accepted, it would be necessary to look carefully at the detail, particularly the relationship between this body and the high court. But the basic idea of an independent body with simplified procedures available free of charge must surely be the starting point. It would be rough and ready compared to the luxurious complexity we have now, but what good is luxury if nobody can afford it?
The independent adjudicators would need knowledge of the law and journalism. Such people do exist, for example the academics who teach journalism in our universities. Provided neither government nor media could influence the selection process, almost any qualified person would be better placed to reach a fair decision than a tabloid editor under pressure to sell his paper. But this could also be of great help to an editor who was unsure about the legitimacy of his story. In a difficult case he could apply to the body and then, with its agreement, publish without any legal risk. This would be particularly valuable for local newspapers.
Do we also need new rules? This will become clearer as the inquiry progresses but two areas seem to need attention. First, the case for legitimising publication of certain kinds of information which would currently be illegal, provided the public interest is strong enough. Second, a requirement to give notice of a story likely to invade privacy and cause distress to an individual or his family. In both cases independent assessment is needed before publication because once published it's too late to do anything.
Some journalists claim breach of privacy does not really matter, particularly if you are a celeb. Well, it does matter. An invasion of privacy is worse than burglary. After a burglary, damage can be repaired and possessions can be replaced. But privacy can never be restored. Worse, the private information becomes freely available on the internet. It's as if burglars left behind an open window allowing the world into your home permanently.
If someone breaks into your house, you call the police. They arrest him. They don't ask whether you are rich. Similarly, properly enforced privacy laws should protect you irrespective of your means.The final difficulty for the Leveson inquiry may be the internet. Clearly, a newspaper that puts unlawful images on the internet should be responsible for removing them. It should not be left to the victim. At the moment, some enthusiasts want the internet to remain a sort of wild west. But it is absurd to suggest that a huge and growing area of commerce and human interaction can exist outside the law. The search engines and service providers are subject to the same laws as the rest of us. Just as a shopkeeper is responsible for what he sells, they are responsible for what they deliver. It is irrational (and ultimately futile) to try to exclude the internet from the rule of law.
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