Original URL: http://www.theregister.co.uk/2013/03/27/press_charter/

After Leveson: The UK gets an Orwellian Ministry of Truth for real

Cause, an untrue news report. Guardian, though, not NotW

By Andrew Orlowski

Posted in Media, 27th March 2013 09:00 GMT

Analysis Ever wondered what a British coup d’état might look like? You’ll have to bring your own visuals, but the soundtrack would probably go like this ...

“Other than an Index of Censorship press release, where is your evidence for '300 years' of freedom?” demands one Reg comment-poster after your correspondent suggested MPs had ended three centuries of freedom from political interference of the published word - brought about by giving the nod to a new, powerful press regulator.

Another reader proclaims:

“Given a choice between the government and the press, I'd trust the government's honesty and integrity more than the press.”

A newspaper cartoonist advises us to wipe away the tears: 300 years is a good innings for anything.

It’s a bit of cliché to say that England pioneered free speech. It also happens to be true. The notion that "everything which is not forbidden is allowed" was not, in fact, invented by William S Burroughs while he was strung out on heroin. It’s an ancient English principle, nice and simple, and also one of old Blighty's great exports. So too is the subtle idea that on top of this foundation of freedom, any wise legislation implicitly encodes a balance of rights; and that any new law is brought in only if there's a huge need for it.

Liberty is a strong part of British self-identity; it's what makes us awkward bastards sometimes. It’s just that the British, being fairly self-effacing, don’t bang on about it all the time unlike some other nations who were rather slower to abolish slavery.

The distrust of Parliament was expressed when Cromwell dissolved it, and later when the Glorious Revolution of 1688 clipped its wings, beak and feet. As for 300 years of publishing freedom, that's calculated from the demise of a short-lived newspaper licensing act, which expired in 1695. It was only in 1771 that a pamphleteer, Wilkes, won what became known as the "Printer’s Case".

After that, at last, it was a taboo for Parliament to regulate the published word - until quite recently. Regulating the press simply wasn’t British.

How on earth did we get to here?

In recent years the law has swung heavily against publishers and in favour of the wealthy. It’s high summer for the rich, and even minor celebrities, who have never had it so good. The incorporation of European human rights law into UK legislation, giving wide interpretive scope to judges, has ushered in the superinjunction era. It’s a popular misconception that social networks have made these super-injunctions pointless; the banning orders are working very well right now for many unnamed celebrities, even minor celebrities. The press is already regulated by the law - civil and criminal – so the case that the published word needs exceptional regulation has to be an exceptional one.

It was Herbert Morrison, Peter Mandelson's grandfather, who in 1948 broke almost a century of taboo by promoting a royal commission “to inquire into the control, management and ownership of the newspaper and periodical Press and the news agencies, including the financial structure and the monopolistic tendencies in control, and to make recommendations thereon".

In doing so, as one historian points out, “he helped to create a political atmosphere in the postwar period in which government-inspired inquiries into the press could take place without being universally interpreted as attempts to curb press freedom".

Fictional Dave Spart in Private Eye

Right-on, right here, left-foot now

Three royal commissions into press freedom would follow over the next thirty years. By the time of the third, in 1974, Labour politicians wanted to create a Communications Council, with unions participating, to "keep the operation, development and interrelation of all the mass media under permanent review". This third commission concluded in 1977 that an organisation monitoring all media was “potentially authoritarian”, and rejected it.

Then things got seriously barmy. Labour gradually developed a conspiratorial view of the press, with Rupert Murdoch at the centre as some kind of omniscient Bond-villain (indeed a Bond villain fairly evidently modelled on Murdoch, "Elliott Carver", duly appeared). Politicians played up the myth of Murdoch as a power broker, even though he only ever backed winners who were already winning. The language of Private Eye anti-corporate spoof columnists Dave and Deirdre Spart entered the language, and soon enough "Fleet Street" was an omni-powerful and sinister "mass media".

During this time something else happened too. An intellectual fashion spread through academia that considered people as objects to which Things Are Done. Never mind that the majority of Sun readers continued to vote Labour despite the paper's editorial stance, and the tabloid was mainly full of amusing tittle tattle - perhaps that's why they bought it in their millions. People now forget the Currant Bun’s 1987 séance with Josef Stalin (headline: “Why I’m backing Kinnock”) - so much for the myth of the king-making redtops and their sheeplike readers.

But this reductionist notion of the voters as helpless and stupid absolved academics and politicians of the need to accept that voters choose The Other Lot, the party disliked by the intellectuals, for good reasons. Rather than simply seeking revenge or voicing protest, the electorate might just sometimes prefer the Opposition's policies or have more trust in that leader's character.

Traditionally, if anyone wanted to exert some pressure on the press, he or she would simply urge the public to stop buying the newspapers in the first place – a punishment successfully meted out by the people of Liverpool in an unforgiving twenty-plus-year snub of The Sun for its infamous Hillsborough disaster coverage. But the notion of the public imposing a commercial death penalty on a publication slipped away over time, and slowly, the idea of top-down authoritarian control of the media was detoxified.

The printed press was gradually being tamed. Details of illegal or immoral news-gathering practices that had been rumoured, but never proved, began to emerge: way back in 2003 the Motorman inquiry by the Information Commissioner had unearthed widespread "blagging" all across Fleet Street – personal telephone numbers, addresses and PO boxes of individuals were available, or could made available to journalists, for a fee. Many of the posh papers took part as well as the reprensible redtops, and all were named in public by the ICO. But simply nothing happened.

And nothing carried on happening for years. Anyone remember what finally got this whole thing rolling?

In 2007, following more allegations, a News of the World reporter and a private investigator pleaded guilty to intercepting the voicemail of members of the Royal Family and were jailed. The editor of the paper, Andy Coulson, resigned. The police subsequently launched two enquiries – Weeting, into communications interception, and Elvedon, into payments to the police. A drip of revelations showed cosy and highly questionable relationships between NoTW publisher News International and the police. The mighty Murdoch-run publisher had embarked on a programme of settlements to buy the silence of the victims of blagging – a plan not so dissimilar to the hundreds of gagging contracts and payouts arranged by the National Health Service to buy the silence of whistleblowers – a practice widespread across the public sector, then. By 2009 it was clear that the era of blagging was over.

But the desire to regulate “the mass media” had not diminished. Prime Minister David Cameron had originally supported two inquiries into press behaviour but allowed them to roll into one, which became a giant all-consuming inquiry into the “culture and ethics” of the media, and its relationships with politicians. Having foolishly hired ex-NoTW editor Coulson to work in his offices, Cameron no doubt felt obliged to make a gesture.

Excruciating details of cosy social relations between top politicians and tabloid executives would emerge - but it was all a giant red herring.

Leveson didn’t look promising from the start. High Court judges despise the press to begin with, but the inquiry was rapidly co-opted by privacy activists (supported largely by celebrities and others who had suffered at the hands of the tabloids) who wanted harsh state regulation. Leveson’s report produced what closely resembled an activist’s manual, as the former editor of The Guardian Peter Preston pointed out:

Leveson does what seems suspiciously like a scissors and paste job on the Media Standards Trust's own version of history, which in turn draws heavily on a 12-year-old volume from Tom O'Malley and Clive Soley called Regulating the Press (what it says on the tin). No original thought or research required.

The Media Standards Trust was a campaign group, heavy with academics, that had been spun out of an oddball training company called Common Purpose. Common Purpose sells “leadership courses” to public sector bodies and appears to be highly efficient at extracting money from them; it employs 120 people. Its co-founder Sir David Bell also founded the Media Standards Trust, and became one of Leveson’s six key advisors.

At first the trust had been careful in its language. In 2010, the outfit had [PDF, 600KB] recommended a more aggressive role for a revamped press watchdog, able to undertake its own investigations into press behaviour, while still being "self-regulated". The taboo on state control had yet to be broken.

The trust then gave birth to a specific pressure group pushing for a public inquiry, the secretive and increasingly aggressive Hacked Off. (The two shared an office, and Bell sits on the board of both.) Four members of Hacked Off were present in the room with Labour leader Ed Miliband, his deputy Harriet Harman, Deputy Prime Minister Nick Clegg, Lord Falconer and the Labour chief whip, as the new regulation proposals were agreed at 2.30am. Representatives from publishers or civil liberties experts were barred. The only Tory in the room was a man who had invited a burglar into his house at 5am one day, to use the toilet.

We now know a little more about who’s behind Hacked Off. One source claims that six of the donors have a net worth of around £1bn, including Lord Sainsbury, Lady Annabel Goldsmith, Arpad Busson and Alain de Botton. Hacked Off? It resembles a club for the angry super rich with grievances against the press.

But there was a problem for Leveson. Every single one of the media practices he heard about was already illegal. Bribing police and the interception of communications are both criminal offences and had been for a long time. Inaccuracy of a sort which could damage is defamation, intrusion is covered by harassment and trespass – they are all civil offences. The British media is, in fact, very heavily regulated already by the existing laws of the land. They just hadn't been enforced, and much of the blame for this lay with politicians rather than journalists.

All this was explained to Leveson by Private Eye editor Ian Hislop, [PDF, 820KB] who pointed out:

The fact that these laws were not rigorously enforced is again due to the failure of the police, the interaction of the police and News International - and let's be honest about this, the fact that our politicians have been very, very involved in ways that I think are not sensible with senior News International people.

"If the state regulates the press then the press no longer regulates the state," Hislop added during the inquiry.

When he delivered his four-volume report, Leveson skipped over these relationships; he found no widespread or institutional corruption.

Among his recommendations were several chilling ones. He recommended that legal protections for journalists be revised, so that the police could seize a reporter’s material without a court order. He appeared to acknowledge this would inhibit legitimate journalism – so he recommended setting up a government “whistleblower’s hotline”. Which is fine, if you trust the government to investigate itself or its friends.

But nobody cared: Until we heard that EVIL TABLOID JOURNOS had DELETED MILLY DOWLER'S VOICEMAILS

From the Hacked Off playbook: The "Dowler" Test?

With no rational case for state regulation to be found, the activists relied on an emotional appeal instead. A motley collection of minor celebrities – many of whom had been caught with their trousers down – would have given Hacked Off the flavour of a Carry On film. But some ordinary victims had genuinely suffered intrusion (the Dowlers) and defamation (the McCanns) – and these were cynically presented as the face of the campaign while the super-rich and the pantsdown celebrities remained in the background.

It was particularly ironic that the Leveson process and concurrent police probes were kickstarted by the "news" that NotW journalists had not just listened to murdered schoolgirl Milly Dowler's voicemails in 2002 but had actually, purposefully deleted some of them, potentially destroying vital evidence and unbelievably cruelly leading her mother to believe that her missing daughter might still be alive.

Bear in mind this revelation only came after the Guardian's phone-hacking investigation had dragged on for so many years with very little result; long, long after the Motorman investigation had publicly named almost all the UK's major newspapers as having broken laws; and long after the Coulson affair had blown over with almost no damage to the News of the World.

But with the Dowler voicemail-deletion story an outraged nation finally woke up to a narrative which it had considered basically unimportant up to that point, and demanded action to curb the sort of press who would do a thing like that - and such curbs are on their way.

We owe our new Ministry of Truth to a newspaper report which said terrible and untrue things about people, based on police sources the journalists should not have had any access to. This report was in the Guardian, not the NoTW

There's just one problem: there was no evidence to suggest that any journalists at any paper had done any such thing. The Operation Weeting police report said, much later:

There is no evidence at present to support a suggestion that any journalist attempted to hack into Milly's phone prior to 26th March 2002.

The "false hope" moment when Sally Dowler believed that messages had been deleted on Milly's phone was on 24 March. The police, having reviewed the evidence, are not even sure that any deletions ever took place.

So the NotW was destroyed - with hundreds of people who had done nothing wrong thrown out of work - and the entire British press is now to be subjected to direct state control (and an ongoing police witchhunt which rumbles on unstoppably, with no end to the arrests and prosecutions in sight - as the Guardian noted, even its sister paper the Observer has been named in blagging enquiries) ... all because of a newspaper story that wasn't true, supposedly based on police information and sources that the journalists who wrote it should not have had access to.

That really is ironic.

None of this is to suggest that the Dowler family didn't suffer at the NotW's hands or that laws were not broken routinely by the press back in the blagging era - but that had already been well known for years, and no Leveson inquiry resulted. The real story was the long-running failure to act by the police and prosecutors, and the fact that their political masters seemed quite happy about this.

It's also worth noting here that it's typically impossible to do crusading public-interest investigative journalism without breaking laws - that's why the public interest defence exists. That's why journalists typically refer to documents they may have "seen", rather than ones it would be illegal or actionable for them to possess, and why they often don't name their sources - the source would often be subject to criminal prosecution, civil lawsuit, sacking or all of the above if named. The journalist has, by revealing the source's information, very probably violated one or more laws; but this may well have been justifiable.

So inaction by the police in cases where journalists are thought to have broken laws or connived at law-breaking by others isn't always wrong. If a prosecution would evidently fail in court due to a public interest defence, in general no prosecution should occur and no arrests or even seizures should be made.

Where there is no public interest, the authorities should act. Simple - why do we need a Ministry of Truth for this?

In any case, the revelation that Milly Dowler's voicemails were not, in fact, deleted by journalists makes the use of the Dowlers as figureheads by the celebrities and millionaires of Hacked Off look even more cynical. If you put genuine victims on the front of your tank, people may mistake it for an ambulance and speed it through.

A Whingers' Charter

The history is relevant here because the regulation reflects it, and encodes it. Leveson makes no attempt to weigh the role of the press in exposing malpractice and annoying the wealthy. There’s no attempt at examining official enquiries from Motorman on, to see what worked and what didn’t. It would put the police and the politicians and their relationships in the spotlight, where they belong.

But Leveson was all about payback, and Hacked Off’s charter reflects Hacked Off’s specific prejudices. (MPs are delighted to help, naturally enough.)

So the Charter is vague on fundamental definitions – such as what is news, and who is a publisher – yet produces an incredibly complex and specific grievance procedure. State funding is available to anyone with a whinge, or a chip on their shoulder. As our own Chris Williams has already pointed out here, any publisher must now think twice before doing anything that might annoy a public-relations operative, such as calling DCMS the "Ministry of Fun" or the intelligence services "spooks" (both of these have genuinely elicited complaints from government PR staff in recent memory).

The last time I wrote a story which upset a PR, she rang us up.

“Can you take it down please?” she asked, repeatedly.

“No, it’s based on multiple confidential sources, but we’ll add your view to the story that you dispute it,” we said.

In future, that PR might well drag us into the mire of an unaccountable government grievance process. It will cost her nothing to do so, and will offer an excellent chance of getting the annoying report or headline erased or altered to her requirements - and perhaps of extracting a punishing fine from The Register's none-too-capacious coffers.

The "Ministry of Truth" is not an exaggeration or a bogeyman any more, then. It's a precise description of the new state media-regulator's function. The quango would not only fund my PR’s complaint, but also decide what is the truth, and impose fines if it thought that was required – all outside the judicial system. (The mind-boggling complexity of the quango doesn’t make it "judicial".) Dare to step outside the quango and the publisher faces crippling fines – up to £1m.

This is truly a Whinger’s Charter, designed for the intolerant, the special interest and the plain barmy. It doesn’t usher in Big Brother overnight, probably, but simply nitpicks it to death. The newspaper industry has been spectacularly inept at reminding people what it does, and why it doesn’t need any more punitive regulation.

“The cheering across town this week is from the rich, the celebrated and the powerful, with parliamentarians in the van,” notes one former editor. The powerful need to be held to account as much as ever, but Parliament is to give them even more power to intimidate and silence their critics.

So it’s a very British coup – British, in the sense of stealthy and bureaucratic rather than noisy and free-wheeling. The Whingers' Charter, designed by bullying millionaires and tinfoil-hatted Murdoch conspiracy theorists, looks unworkable at best, sinister at worst.

But strangely, I think there may be a silver lining. I expect people will begin to value English and Scottish Common Law. Americans learn the constitution, and ideas such as the separation of powers, from a very early age. Here it isn't taught, or is rapidly forgotten. We may even see a revival for that most discredited word "freedom", the unwritten basis for our common law. We prefer to allow people to be wallies, and take the consequences, rather than define every instance of wallydom - as other countries do. So the British approach to law isn’t romantic, it’s practical.

It’s a shame it takes an inept and illiberal intervention to demonstrate it. Until this finally collapses, though, it'll probably be the best media organisations which will pay the highest cost. ®