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A Misguided Response To Press Abuses

British newspaper readers looking to fill the gap left by The News of the World’s closure last year now have something new to occupy their reading time: the nearly 2,000-page Leveson Inquiry report on the state of the British press that was released last week.

It’s a good thing the report is so thick, because if its recommendations are adopted, British readers will have less access to quality reporting for a long time to come.

The report on the culture and ethics of the British press was the capstone of a lengthy inquiry headed by Lord Justice Sir Brian Leveson. It examines the circumstances surrounding the phone hacking scandal that brought down The News of the World and offers recommendations for avoiding future press misconduct.

The most significant of these recommendations is that a new regulatory body should be created to oversee the press, enforce codes of conduct and, when it deems necessary, levy fines of up to $1.6 million. Among other things, the regulatory body would address “standards of accuracy, and the need to avoid misrepresentation,” according to Leveson’s executive summary of the report.

Leveson stresses that this new regulatory body should have “demonstrable independence from both political and commercial interests.” However, he also argues that it should be backed by law. According to Leveson, the government would not set up the agency, but would “validate its standards code and the arbitral system” it would establish. The body itself, Leveson suggests, would primarily consist of “former editors and senior or academic journalists.” While participation in the regulatory scheme would be nominally voluntary, non-subscribing news outlets would be unable to take advantage of “incentives,” including substantial differences in legal treatment.

One of the “services” Leveson suggests the body should offer is a “purely voluntary pre-publication advice service to editors who want support on how the public interest might be interpreted in a specific case before a decision is reached on publication.”

In other words, a government-backed board should be set up and given the power to fine newspapers for their content, and newspapers should be encouraged to submit articles to the board in advance to avoid reprisal.

I rarely find myself in agreement with editorial writers at The New York Times, but a recent opinion piece in that paper neatly summarized the case I would make against this proposed “independent” regulatory body.

The proposal rests on an image of the British press running wild and in need of restraint. As The Times pointed out, this is not the case. In fact, Britain already has many more laws restricting the press than the United States does. Britain’s Official Secrets Act - which would never pass American constitutional muster - allows the Attorney General to stop publication of anything deemed to be sensitive information. Moreover, the country’s libel laws make no distinction between public and private figures, making it possible for a public figure to sue a news outlet that gets a story wrong, even when the error is unintentional. This contrasts with U.S. standards that permit libel suits by public figures only if false claims are made with “actual malice,” defined as either the knowledge that a story is false or reckless disregard of its truthfulness.

The scandals that triggered the Leveson inquiry may, to some extent, have been the result of overregulation rather than its opposite. The underlying problem was that reporters went too far in pursuit of stories by intercepting private communications, bribing officials and harassing reluctant subjects, including celebrities. In the most egregious case, employees of The News of the World hacked into the voice mail account of a missing teenager, listening in on messages left by worried relatives.

Of course, these actions were unjustified and unjustifiable. They were also illegal. But it is easy to see how, in a country where being wrong means being sued, some news outlets would do everything in their power to get their stories right, even when that meant turning to ethically and legally foul methods.

The way to stop journalists from committing illegal acts is enforcing the laws that already forbid those acts, not by creating new regulatory bodies to monitor “the press” as a class. As I have written before, in an age in which anyone with a computer can become his or her own news agency, it makes no sense to attempt to single out journalists for either special protection or special control. We all have the same claim to speak and write freely, and we have the same obligations to act within the confines of the law when trying to gather information.

Leveson is right that the British press is afflicted by systemic problems. He is wrong in thinking that his country’s press needs less freedom, not more.

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