Why I understand the arguments about how awful the tabloids are, yet I’m still anti-Leveson

“One Rogue Reporter” exposes the problems, but I’m not convinced about the solution.

On Saturday I went to the Rio Cinema in Dalston, where I saw One Rogue Reporter, the new film by ex-Daily Star hack Rich Peppiatt, which has been adapted from his Edinburgh show of the same name.

The film is great — it is a damning critique of the terrible behaviour of the tabloids and the culture that led to the Leveson Inquiry in the first place. But don’t worry, the important stuff is washed down with some inspired Mark Thomas-esque stunts in which Peppiatt takes revenge on the journalists and editors. I won’t spoil them for you, suffice to say that Neville Thurlbeck’s exploits would push the film into the horror section of the video store, if they still existed.

Perhaps unsurprisingly, Rich is a supporter of Hacked Off, the pressure group which argues in favour of the Leveson proposals for state-backed regulation of the press*.

You’d be forgiven for thinking that I might do too. After all, who can have failed to have been shocked by what the phone hacking revelations and Leveson Inquiry exposed? And even before that we knew all of the newspapers were hideous, right?

Slightly awkwardly, I was perhaps the only person in the auditorium on Saturday who despite everything still thinks that regulation by the state (or “underpinned by statute”, or however you want to frame it) is undesirable. So I thought I’d explain myself — not least to make sure my arguments are clear, and to have something I can handily link to when arguing about it on Twitter.

My opposition comes down to two factors: the principles of regulation, and the practical considerations of creating and enforcing such regulation of the press.

So first, principles: Essentially, I find something distinctly uncomfortable about the state regulating speech in whatever form it takes. The idea that the state can have a hand in deciding what is acceptable to say is terrifying. More crucially, the idea of the politicians, the very people who the press (at its best) keep in check being able to use the threat of regulation — either implicitly or explicitly. We’ve already (apparently) seen cases of this happening.

So if you accept the need for state-backed regulation, do we really want to hand politicians even more power? Sure, the person in charge of the regulator will probably be an appointment abstracted by one or two degrees from the MPs we elect — someone like the head of Ofcom (who I’m willing to bet nobody knows the name of), but being appointed by, and having policy set by politicians, in addition to having the instruments of the state at its disposal means that anyone writing will be more cautious when publishing something that might displease those in power. Every time a story is written, they have to make a calculation about how much they are going to risk if they publish — what if the consequences of publishing were increased?

Perhaps it is just my punk sensibilities, but I don’t like the idea of The Man telling me what I can’t say.

Okay, so perhaps you don’t buy my argument in terms of principles — that’s fair enough if you have different values or concerns to me. But this brings me on to the practical side of things: How exactly would you define the remit and the reach of any state-backed regulator?

One of the most frustrating aspects of arguing about this on the internet is nobody seems to want to define their terms. Above you may have noticed I referred to “regulating speech” and not “publishing newspapers”, and “anyone writing” instead of “journalists”.

Here’s my challenge: If you can offer me a workable definition of what “the press” is, who “journalists” are, and what constitutes a “publisher” in the 21st century, then I will accept that regulation is plausible.

Unfortunately thanks to the internet, none of these terms have a clear meaning — which means any sort of regulation would be either wildly inconsistent or massively overreaching and draconian.

What if we define “the press” as the traditional group of ten or so newspapers? Then isn’t it weird to say that we should regulate the medium of “paper” or to put it another way, these websites that inexplicably print out certain stories every day and send them to shops to sell? If it was just that group of companies that you want to regulate, then you’re essentially saying that you want to regulate content on a handful of domain names, and ignore the rest.

Why should The Times be treated differently to the Huffington Post? If you expand your definition and count HuffPo, then what is the difference between the Huffington Post and Guido Fawkes? Or Guido and my personal blog? Or my personal blog and my tweets? And what about all of the millons of other websites that are shades of grey between these examples?

There has been discussion of other methods to slice up these differences: what about only regulating companies that publish content, or have more than a certain number of employees? Or make money? Even if we ignore the fact that many newspapers don’t make money, and that Guido Fawkes (arguably) has a bigger readership and impact than many newspapers, and the enormous grey area that platforms like YouTube creates, it fundamentally misunderstands how the internet works.

One of the best things about the internet is that it levels the playing field — and content can go viral. If there’s something good, people will share it on social media, sending many thousand hits in its direction. There has been suggestions that content be regulated on its reach — the number of readers. What happens though if a piece on an obscure blog, or even a single tweet were to suddenly go viral?

Say there were a blog setup by an individual, and one of the posts on there was full of unfounded innuendo about the McCanns (one of the tentpole examples of tabloid horrors) — what if it were to go viral? What if suddenly millions of people shared it on Facebook? Would this blog suddenly cross some sort of arbitrary “regulation” threshold? Would the blog’s creator suddenly be liable for ‘exemplary damages’ as is proposed by Leveson for publishers that don’t sign up to the new regulator? Or would nothing be done?

If the former, then it would be massive overreach into social media (would you dare tweet if you thought it could land you a massive fine?), and if the latter then it demonstrates not only how arbitrary and inconsistent regulation would be, but how utterly useless any regulator would be at tackling the problem it was created to solve.

So how wide does the net go? If you cast it too wide, suddenly you’re regulating the entire internet, which nobody wants because everyone knows that would be madness.

There are many other reasons why regulation is implausible that I won’t go into in detail. For example, how to regulate content published in other countries, how we define who is a “publisher”, and so on.

In essence, my argument is that regulation — even if it were desirable (which I don’t think it is) — is completely impossible to implement fairly and consistently.

So what can be done? I’ve accepted that Leveson and the hacking scandal exposed some incredibly nasty behaviour, but I’ve also accepted that statutory regulation is not the answer.

Unfortunately, the best answer I can give is “I don’t know”. But there are a few things that could help.

Most obviously, even without formal regulation there can still be a cultural shift if we make it happen. With debates like this, the arguments tend to be either “legislate” or “do nothing”, when there is a wide distance between the two. It is possible for something to be both legal, but also socially unacceptable due to peer pressure and cultural taboos: adultery is frowned upon, few would argue in favour of banning smoking outright but it is much less socially acceptable than it was in the past.

Why can’t the same be done for the tabloids? If people are made more aware of some of the less savoury tactics, then you’d hope that people would also be less inclined to support those that use them?

Heck, we even have existing statutory instruments that can be used: these things called “laws”. If someone is phone hacking, prosecute them for phonehacking. If you’re worried about Rupert Murdoch, challenge NewsCorp with the competition commission. If the press is telling lies about someone, use the libel laws (in a crucial difference from any regulation, all of these processes have to go through a transparent judicial process, and take time and energy to apply).

Ultimately though — and this goes back to my principle argument — I think we should view this debate as a trade-off. We already trade-off many things in our society — for example, the risk of terrorism. If we had an ultra-draconian totalitarian security state, where our every move was monitored, acts of terrorism would be much more difficult to carry out. But most people who have actually thought about it agree (certain members of the government and security services excepted…) that we must accept an increased risk of terrorism in order to live in free society.

So unfortunately, the only conclusion I can really draw is that if we want to guarantee our freedom of expression, then realistically, we must accept an increased risk of tabloid dickishness.

(*As far as I aware, based on this tweet and a quick Google, Rich isn’t a part of Hacked Off, but is a supporter. In any case, the film clearly leans that way, and almost all of the talking heads, such as Hugh Grant and Steve Coogan, are supporters, and I know Rich has shared a platform with them in the past.)

Full Disclosure: I’ve met Rich a few times, and like him. More importantly, my radio programme, The Pod Delusion, got the first interview with him after his resignation from the Daily Star (it was conducted by my friend Sean Ellis), and a tiny clip (literally about ten seconds) was used in the film. Ridiculously, I’m mentioned in the “Special Thanks” listing in the credits of the film.