British journalism often looks impressive from afar, with trusted media organizations like the BBC and Economist springing to mind. Closer up, its image is far more tarnished, particularly for newspapers, with a murky stew of phone-hacking, bribery and insider influence.
Given the scale of the wrongdoing, and public outcry, a government-ordered inquiry was inevitable. And given the low esteem in which much of Britain's print media are now held, and pressure from victims for action, it is perhaps unsurprising that the government, together with the opposition, would impose tighter restrictions.
But just because something is understandable does not make it wise. After conferring with colleagues who cover human rights in Asia and Africa, I have no doubt that what is being proposed will not only potentially limit free speech in the UK, but could also inspire similar restrictions in countries with less scrupulous intentions. As one colleague wrote, "the Chinese government will certainly put this to good use."
There are three principal concerns with the deal agreed late on March 18 by the main political parties.
First is whether the new press regulator is genuinely independent of government. The rules for setting up and overseeing the regulator are established by "royal charter," a quasi-legislative method, instead of by law. But several laws are being amended to enumerate its powers and scope, the content of the royal charter itself has been drafted by the government, and once adopted can only be amended by parliament.
All this makes it hard to avoid the conclusion that it is statutory regulation in all but name. Dunja Mijatovic, the media freedom expert at the Organization for Security and Cooperation in Europe, has warned that a government-imposed regulator could pose a threat to media freedom in the UK. As someone who spends much of her time looking at places with far less media freedom, her concerns should be taken seriously
Second, whether participation in the body is voluntary. The government has made clear that any media outlets deemed to be covered by the regulator will be liable to exemplary (i.e. punitive) damages if they refuse to submit to it and are later subject to successful action in the courts. A number of editors, including from the satirical magazine Private Eye, have already indicated that they will not join despite that risk. But for many outlets, especially smaller ones, the prospect of crippling fines will lead them to agree even if they disagree with its rules.
Third is the scope of the regulator. It is already clear from the draft royal charter that the regulator will cover some online outlets - including, obviously, newspaper websites. The culture minister says individual blogs will not be subject to the rules. But as Index on Censorship has pointed out, 'relevant publisher' is defined under the draft charter as any 'website containing news-related material.'
The draft legislation that creates the possibility of exemplary damages indicates that relevant publisher includes websites with multiple authors and an editorial structure giving someone control over publication, not including reader comments. Some prominent blogs would meet that definition. And it is possible that some nongovernmental organization websites could fall under it too. It is unclear whether a requirement that the material is published in the UK would protect websites hosted overseas.
This broad scope means that blogs, social media, and other non-traditional news websites may find themselves subject to regulation as newspapers if they contain postings on current affairs. If they decline to sign up to the regulator, they would risk large fines if they end up on the wrong side of litigation. All of this could chill online discussion of matters of public importance.
Over the past year, Human Rights Watch has documented restrictions against bloggers in Iran, UAE, Vietnam, Tunisia and Azerbaijan, among others. Those governments may well welcome the UK's moves.
The appalling conduct of some British newspapers and the privacy violations suffered by their victims mean that the status quo is clearly untenable. But the solution proposed by Britain's political parties looks like an overreaction.
The UK courts have developed privacy law in a way that protects individuals, while the UK's libel law is so overly friendly to claimants that London has become a centre for libel tourism.
Libel law is now thankfully being reformed, albeit with further room for improvement. But there may be a case for improving access to the civil courts for those whose rights are affected by newspapers but who cannot afford a lawyer, at a time when the government is greatly reducing access to legal aid.
The worst excesses--phone-hacking and bribery--were already criminal offences. They led to the closure of a newspaper, to compensation payments and to ongoing criminal prosecutions. But they came to light not because of police action but because of investigative reporting, in the best tradition of British journalism.
Before taking steps that could chill free expression and independent journalism, as well as giving abusive governments elsewhere an excuse to restrict media freedom, the UK should focus instead on enforcing the criminal law and making sure that victims have the ability to access justice when their rights are abused.