There is a sense of incompleteness about what is known about the phone hacking and other unlawful methods of information gathering used by the British press in the early part of this century.
The details of this week’s reports by Nick Davies (here and here) indicate there is a lot more to what happened than is generally known. The frustrations of Hugh Grant, in having to settle his civil case before any open court hearing and adjudication, show the difficulties of getting any public airing at trial and a judgment setting out what went wrong.
There is no real doubt that we do not have the full picture of the wrongdoing that took place at some of our most powerful newspapers. This in turn suggests that the government should at last proceed with what is known as “Leveson 2”. For many this is an attractive, even urgent proposition. But the position is not straightforward.
The original intention was that Lord Justice Leveson’s inquiry into press wrongdoing would be both an investigation and the means of recommending a new regulatory system. The inquiry would have two parts. The first part would be into “the culture, practices and ethics of the press, including contacts between the press and politicians and the press and the police; it is to consider the extent to which the current regulatory regime has failed and whether there has been a failure to act upon any previous warnings about media misconduct.”
The hearings for the first part of the inquiry took place in 2011 and 2012, with the report being published in November 2012.
The second part of the inquiry was to cover “the extent of unlawful or improper conduct within News International, other media organisations or other organisations.”
It would also consider “the extent to which any relevant police force investigated allegations relating to News International, and whether the police received corrupt payments or were otherwise complicit in misconduct. This part of the Inquiry must also address the extent of any corporate governance or management failures at News International and other newspaper organisations and the role (if any) of politicians in relation to any failure to investigate wrongdoing at News International.”
This second part never took place. After years of delay, it was announced in March 2018 that it was going to be dropped altogether. The minister then responsible, Matt Hancock, told the Commons that “we do not believe that reopening this costly and time-consuming public inquiry is the right way forward.”
Some of the reasons put forward by the government were not compelling: that a new regulator—the Independent Press Standards Organisation, or Ipso—had been set up; that newspapers had improved; and that the police had issued guidance on dealing with the press. Hancock’s assertion that “we have seen significant progress from publications, from the police and from the new regulator” is not one that would be widely accepted.
But there was one reason put forward by the government that did have some force. By 2018, the media landscape was radically different from that of the first years of the century. Print circulations were declining, if not beginning to collapse. Telephony is now fundamentally different from that based on the relatively primitive technology that enabled voicemail hacking to occur.
Furthermore, the traditional print media of “Fleet Street” is now but a sub-section of the news and comment available on web browsers and smartphone apps. Indeed, on social media, individual freelance journalists can have followings bigger than many newspapers and magazines.
This means any new regulation of a few news organs would be futile. Any rules and restrictions would be easily circumvented. This is not to say that certain news organs are perfect. But it is impossible to see how regulating a few of the sources of news in the age of social media and smartphone apps would have broad, positive effects.
Put simply, what happened in the first decade of this century cannot be a sound basis for proposing a regulatory model for the news of today. It would have the flavour of the battles of the First World War being a guide to the battles of the Second, or even of a world war to come.
And this is the problem with the Leveson inquiry: it was a fact-finding exercise for the purpose of proposing reforms. But the latter exercise no longer makes sense. There perhaps should be an inquiry into how the current practices of the media—especially as relates to disinformation, fake news and clickbait—should be dealt with by regulation. But those are not the questions posed by Leveson 2.
Some nonetheless say Leveson 2 should be revived. Hacked Off, the lobbying group, told me that “Leveson Part Two was promised to the victims of press abuse. The decision to cancel it was a tacit endorsement of criminality and corruption in the press, and should be reversed.” And the Impress regulator (which was, like Ipso, established following Leveson 1) said: “The purpose of both the police, other prosecuting bodies and the press is to serve the public. The fact that potentially underhand relationships between them were never properly investigated has no doubt badly affected trust levels in journalists over the past decade.”
The full reality of what happened will not now be uncovered by criminal or civil proceedings in the courts. Clever and deft litigation strategies from defendants and others have ensured that certain evidence will not be assessed at trial. Hugh Grant has good reason to be annoyed that his civil case had to be settled, but civil claims for damages were never an effective way of bringing things to a court hearing, for a money claim can always be settled by, well, money.
Leveson 2 combined two things which are now perhaps distinct. The limits of civil and criminal litigation indicate that a further statutory inquiry into exactly what happened with the media before about 2012 may be needed, perhaps with coercive powers of obtaining evidence. But that should be uncoupled from proposals about how to regulate the media of today.
Media regulation is never easy. Simply having a statutory regulator with formidable powers does not necessarily ensure good regulation, as Ofcom’s toothlessness in the face of the populist channel GB News demonstrates. There is no reason to believe a statutory press regulator would do any better than the statutory broadcasting regulator. And no regulatory regime can be effective in respect of concealed criminal behaviour.
This is not just a media problem; other regulators, like Ofgem, have shown that they are weak against industry interests. Regulators tend to get captured by those they regulate, unless they are exceptionally robust. And few regulators will have the resources to address hidden unlawful conduct.
A wise politician once said that not all political problems have solutions. Leveson 2 would no doubt uncover what is still covered about what happened before 2012, but the problems and threats facing the media are now different, and so a different data set from which proposals can be drawn is needed.
That said, there are two lessons to be drawn from the reports of Nick Davies and the materials that have emerged from the civil litigation on unlawful information gathering, where relevant material has only been produced under pain of court orders.
The first is that whatever regulatory form is adopted either requires coercive powers to obtain information from unwilling regulated entities, or it is pointless and should not be bothered with. For self-regulation or “light-touch” regulation is, in this context, no regulation.
And the second is that, even if a regulator has such coercive powers, it also needs to be sufficiently independent and robust to fearlessly use those powers against those who will not want to provide it with relevant information, who have concealed wrongful behaviour, and who can pay lawyers a lot of money to ensure they do not have to reveal it. And relevant information is essential, else media regulation will just be a case of GIGO: garbage in, garbage out.
Media regulation is easier to call for than to make work. How, if at all, the media is regulated remains a hard question, and one which may not have a workable answer.
