25 November 2012.
Judge Leveson will soon release his long anticipated report on Press Practices. You would have thought the Luftwaffe had suddenly appeared over the English Channel.
Observers widely and wildly anticipate some form of press regulation. For weeks now some politicos and media alike have fulminated against what is, in essence, their own speculation.
They need to take a chill pill. It isn't the end of life as we know it.
It isn’t about freedom of speech, is it
Leveson has a context. It isn’t freedom of the press (at least as that concept is embodied in the United States Bill of Rights). It is alleged widespread illegal practices, especially illegal searches and seizures of confidential information. It is alleged hacking of private phones and computers. It is alleged bribery. It is the alleged use of the information — and the proven capacity to gain it — to unduly influence the policies and decisions of public officials. It isn’t the vital Freedom of the Fourth Estate. It is the Corrupt Practices of a ruthless Big Press.
Most of these charges have not yet been proven criminally in a court of law. I express no opinion as to the accuracy of those charges in any individual case, especially those still pending.
But I will offer this opinion — had the allegations been lain at the doorstop of MI5 or even MI6 they would have ignited furious righteous indignation among the very figures now protesting the regulations Leveson has not yet proposed.
Why would the public accept the behaviour Leveson revealed?
Why would the public accept behaviour from multi-national media giants it would not tolerate from big government? Why would the public accept extortionate practices it would not accept from the Mafia?
Some argue public interest. But in many of the cases Leveson examined the alleged victims were ordinary, private citizens caught up in allegedly "press worthy" events.
Would we accept a “public interest” defence where big government illegally spyed on ordinary, private citizens? Wouldn’t we demand at least a showing of probable cause before an independent magistrate? Wouldn't we insist the procedure be confined to allegations of truly terrible nature — terrorism, organized crime?
Leveson didn't explore the illegal search and seizure of information pertaining to "Johnny the Fish" or "Osam Bin N Gone." Leveson explored the illegal search and seizure of information pertaining to Millie Dowler.
Why would we put up with this? We wouldn’t. We didn’t. We won’t.
It’s an opportunity
Leveson presents an opportunity if embraced. The Press could negotiate seriously healthy changes to British law.
For example, the Press could negotiate limiting Britain's strict liability Libel law. Liability could be limited to proven actual increments of actual damage proximately caused by any publication. They could negotiate adding a defence now accepted in the US — absence of malice with respect to a public figure about whom inaccurate information was published mistakenly but honestly after reasonable diligence.
The press could negotiate an overhaul of the Freedom of Information Act, including a Private Attorney General enforcement mechanism. The mechanism could award prevailing plaintiffs' costs and attorney fees. Individual public officials could be made liable for civil penalties for bad faith refusals to comply.
For that matter, the press might negotiate a Private Attorney General mechanism in lieu of a regulator to enforce whatever regulations Leveson does propose.
Seems to me a responsible Press would seize this moment, turn it into a triumph for responsible freedom. That certainly would be preferable– and invoke considerably more public sympathy — than some of the panicked and petulant rants I have read against regulations not yet recommended and a report not yet released.