Curbing egregious practices: How to miss the point

Free media policies have costs and disadvantages and egregious episodes. But that’s how freedom works. Deal with it
At least Hugh is happy...
Charles Crawford
On 25 March 2013 09:07

Chris Blackhurst, Editor of the drolly named Independent, pours out his agony on the subject of ‘press controls’ (sic):

I approach the conundrum of additional press control from not desiring any at all. Already, we have libel and other laws that restrict our journalistic freedom to operate. Why add to them? We also have a self-regulatory system that deals with thousands of complaints a year, most of them to the satisfaction of the reader … Again, why alter it?

The answer is because the existing structure has been unable to curb egregious practices … Because the current Press Complaints Commission has been found wanting. Because the standing of our trade has plummeted. Because the public mood demands better.

Meanwhile smart legal writer Carl Gardner makes an intricate legal case that bloggers too should be covered by the new ‘press self-regulation’ (sic) scheme. He argues that we mere blogging sheep will be much better off by trotting into the government’s regulatory sheep-pen, safe from the wolves of exemplary damages:

No: for lone bloggers, the benefit of costs protection against libel claims far outweighs the risk of exemplary damages. They should not be excluded.

I welcome regulation: I see it as potentially liberating the press and blogs from the chilling effects of libel threats. But that can’t work for small publishers if they’re denied the benefits of the system. The provisions should be amended to let us in, as Leveson recommended.

The problem with the people proclaiming these views is not that they aren’t intelligent or eloquent or even sensible, in their own terms. It is that they timidly sit and watch as the lifeblood of principle ebbs away, and then consult a clunky collectivist utility-calculator to work out what is for the best.

This is yet another example of what happens when the default position of society lurches in favour of two contentious propositions: first, that every possible supposedly ‘egregious practice’ has to be stopped; and second, that only more state control is suitable for that job.

First, there are already plenty of laws aimed squarely at egregious practices in the general media world. Criminal law and civil law remedies combine to punish excesses, as has happened aplenty already. Journalists and corrupt police officers have been prosecuted. Huge damages have been paid. Good grief, one major newspaper has been shut down.

So we have no lack of sanctions in this area, formal and informal. Just as we have the strictest laws against killing people. Yet in a country of some 60 million people some murders and manslaughters and deaths by dangerous driving  nonetheless happen.

That’s the way things work. Accepting that is not being complacent or ‘uncaring’. It’s realising that there are philosophical and practical limits to what can and should be done to make everyone perfectly safe all the time.

In the case of these egregious media practices, the number of people who were either victims of media harassment or who committed the harassment are tiny. Trillions of words are published in the UK every year. The number of words or articles that are obviously egregious and damaging but not caught by existing laws is vanishingly small.

Yes, these cases catch public attention. But what is the right measure here: the volume of public clamour, or the tiny unhappy unimportance in the great scheme of things of such occasional excesses? The pain of someone caught unfairly in a media firestorm, or my right as a modest blogger/pundit to write this article without fearing the state?

Most important: how to work out the likely effects of changing the law/rules/regulations as is now proposed? Perhaps on the far margins of the media a few more egregious cases will be prevented. Perhaps not. No-one knows. But it is almost certain that a number of stories exposing wrong-doing or impropriety won’t be written because on those same margins the journalists and bloggers will wisely fear straying inadvertently into exemplary damages territory.

That’s the whole point of these changes – to make all writers fear the consequences of their writing, and so ‘be careful’. Everyone loses. Except the powerful undeserving creep whose misdeeds stay hidden.

Ministers and MPs are in a unique position in society – they alone (with help from judges) write the rules, then send out people with sticks and guns to use whatever force is necessary against you and I to enforce them.

This means that Ministers and MPs above everyone else have to take their moral responsibilities seriously. They hold our ancient legal rights and freedoms in trust for us. They have no right as trustees to trim these rights and freedoms in a furtive midnight haggle among themselves with a well-funded pressure-group for the sake of trying to do the utterly impossible, namely to stamp out all human unfairness and unpleasantness.

What we see instead is Ministers and MPs making it up as they go along, giving no value to freedom as a Kantian end-in-itself.  

Our political elite’s failure is all the more odious for the sneaky measures they propose to chivvy the sheep into the pen: trivially unjust arrangements for making innocent people pay costs, and ‘exemplary’ damages for those sheep who dare to take their chances with the existing law.

Carl Gardner has a point in showing us the idiotic anomalies created by attempts to define which ‘publishers’ would or would not fall under this repellent regime. But the answer is not to accept the state’s oppressive premise.

An honourable and tough politician would read carefully the brief saying that “the existing structure has been unable to curb egregious practices … the Press Complaints Commission has been found wanting … the public standing of journalism  has plummeted … the public mood demands better.” And then make a strong unwavering stand in favour of doing exactly nothing, other than to make sure that existing laws are enforced. Because we in this country do not regulate the media. That’s one reason we are ‘Great’.

Proposed public line: Free media policies have costs and disadvantages and egregious episodes. But that’s how freedom works. Deal with it.

Charles Crawford is a Contributing Editor to The Commentator. A former British Ambassador in Sarajevo, Belgrade and Warsaw, he is now a private consultant and writer. Visit his website and follow him on Twitter: @charlescrawford

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