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New Regulations Threaten Freedom of the Press in UK

In a move that would be unthinkable to most Americans, politicians in Britain are on the brink of introducing statutory regulation of the press in a bid to curb what they see as the excesses of the nation’s newspapers. Those behind the proposals are taking advantage of the lack of explicit free speech or press freedom protections in the UK’s piecemeal constitution, which is partly written and partly based on convention. At the end of the day, what Parliament says, goes. Liberals in the U.S. would kill for a similar arrangement.

The politicians have rejected the newspaper industry’s own plans to beef up its current system of self-regulation. And while they insist the press has nothing to fear from their proposals, newspapers argue  that, once the principle of state regulation has been established, future governments could abuse it. Under the proposals, the regulator would have the power to demand prominent corrections and apologies from publishers and impose £1million fines. Newspaper publishers that refuse to submit to the regulator’s fines and rulings could face punitive damages in the courts, and could be made to pay the full costs of court cases even if they win.

The push for state regulation began in 2011, following a public inquiry into the phone-hacking scandal, in which reporters and private investigators working for the Rupert Murdoch-owned tabloid The News of the World accessed the voicemail of celebrities, politicians and members of the royal family, among others, over several years. The NoW was eventually closed down after it emerged that investigators had hacked the voicemail of Milly Dowler, a 13-year-old girl who was abducted in 2002 and was later found murdered.

The inquiry recommended the establishment of a new regulatory body to replace the industry-run Press Complaints Commission. While the industry would ostensibly continue to be self-regulated, the regulator’s powers to levy fines and costs would be "underpinned" by legislation. Seizing on the chance to muzzle a press that’s predominantly right-of-centre, particularly at the tabloid end of the market, both Labour and the Liberal Democrats, the Conservatives’ center-left coalition partners, campaigned for the full implementation of the proposals. They were supported by Hacked Off, a group of left-wing academics and activists, establishment figures, and celebrities who’ve been the victims of press intrusion.

However, this isn’t a straightforward left versus right issue. MPs of all parties are keen to exact revenge on a newspaper industry with whom they’ve endured a stormy relationship, not least during the 2009 expenses scandal, when the Daily Telegraph and other papers published details of how politicians were fraudulently claiming allowances for everything from accommodation and travel to floating duck islands, leading to criminal charges against several MPs, and a wave of demotions.

Conservative Prime Minister David Cameron initially rejected any notion of state regulation as “fundamentally wrong in principle." While pledging to implement the inquiry’s proposals as long as they were not "bonkers," he warned that passing legislation to establish a new regulator could pave the way for politicians to impose stricter controls in the future.

After several months of stalemate, a cross-party deal was agreed on in March. To the consternation of the newspaper industry, the deal was done in the House of Commons office of Labour leader Ed Miliband, at a meeting attended by Lib Dem leader Nick Clegg and representatives of Hacked Off. No one from the newspaper industry was present and Cameron didn't attend, instead sending along a senior aide who found himself outnumbered and outgunned.

The proposed new regulator will be set up by royal charter, an archaic instrument issued by the sitting monarch, which is used to incorporate a body as a legal entity, and set out its rights and powers. The charter will therefore be granted by Queen Elizabeth rather than the government. This is thought to be the first time that a monarch has been asked to sign a charter imposing a system of regulation on an unwilling industry, and the charter could be amended by a two-thirds majority in both houses of Parliament, creating an opportunity for further political interference.

All sides claimed victory following the deal, with the left claiming they'd got the tough regulation they wanted, while Cameron and the Tories insisted that they'd prevented Labour and its allies getting their way. The obscure nature of the charter mechanism means no one is sure exactly how the system will work in practice; it seems that, like Obamacare, we'll have to pass the law to find out what's in it, and unintended consequences are sure to abound.

Among other things, it is not clear if the regulator’s remit will extend to internet news providers that aren't owned by print newspapers, or to blogs or social media. If it does extend to social media, we can at least enjoy the incongruity of Twitter being regulated by a document that was first employed in 1066, and which will be issued on behalf of an 87 year old and includes the words "ye" and "especial."

But what is clear is that, the politicians’ assurances notwithstanding, the proposed charter does indeed constitute state regulation. It’s hard to claim that an industry is being allowed to regulate itself when its proposals for doing so are dismissed by politicians in favor of those politicians’ own proposals, drawn up in conjunction with a politically motivated pressure group and with no input from the industry.

While the newspapers and their few supporters in Westminster (which include a couple of principled Labour MPs as well as several Tories) accept that the current system of self-regulation is inadequate, they point out there’s no need for "legal underpinning" when there are already laws in place to deal with phone hacking (61 journalists have been arrested over that scandal), libel, and harassment. Meanwhile some legal experts have claimed that the proposed statutory measures would violate Article 10 of the European Convention on Human Rights, which protects freedom of expression.

The royal charter is set to be approved by the Privy Council, the body of senior politicians that advises the sovereign, on Wednesday October 30th.  It’s not clear, though, what will happen if the newspaper industry as a whole simply refuses to sign up to the new regulatory system, making it unworkable from the start, and establishes its own body. And it would be interesting to see which, if any, politicians would be prepared to declare war on the press in the run-up to the 2015 general election.

Britain’s newspapers certainly don’t make it easy for anyone who would be inclined to defend them. They’ve been guilty of outrageous behavior over the years, while being quick to claim that the freedoms they regularly abuse must be maintained if they’re to hold the powerful to account. The problem with the press is one of culture rather than law, and it can reasonably be argued that Britain has the newspapers its citizens both want and deserve -- sometimes grubby, sometimes heroic, but never boring.

If the proposed regulation comes into force, it will be a huge victory for Labour, Hacked Off, and the BBC, which shares their left-wing sympathies, and which also dominates television, radio, and internet news provision in Britain, and would love to see its ideological and business competitors hobbled. It was the BBC that spearheaded the recent hysteria over the Daily Mail’s attack on Ed Miliband’s communist-sympathizer father, whom PJM’s Ron Radosh wrote about. It’s not hard to see how the left could game the proposed regulatory system in the event of a similar case, orchestrating a campaign of "spontaneous" public outrage that would pressure the regulator to punish the offending paper.

The modern left hates the idea of a free press, and of free speech in general, because it knows that in a free exchange of ideas it will always lose. Leftists fantasize about a press controlled by journalism professors, lawyers and other members of the great and the good, who would ensure the public was "educated" with a non-stop diet of stories about racism, inequality, global warming and third-world poverty, and despise the celebrity-worshiping and crime-obsessed majority of the British public that doesn’t share their politics or their good taste.

But state regulation will also be a victory for the political classes as a whole, including nominally conservative politicians, whose aims increasingly coincide with the those of the statist left: the carving out of special privileges, and the transfer of power to themselves and away from the people; such goals are difficult to achieve in an environment of transparency and free speech. A left-wing crackdown on the freedoms of its political opponents is to be entirely expected, but it’s a shameful reflection on the state of conservatism in Britain that so many Tory MPs are happy to collude in it.

Americans will point to the First Amendment to insist that "it couldn’t happen here," and it probably won’t, so long as the country’s most influential newspapers hew to the liberal-left line. However, the left makes no attempt to hide its contempt for the Constitution, and more than one Democrat has raised the prospect of reintroducing the Fairness Doctrine to silence conservative talk radio, while Democrats Dianne Feinstein and Dick Durbin think politicians should be able to decide who's a journalist and who isn’t. If Britain throws away 300 years of press freedom on a whim, the American left will be casting envious glances across the Atlantic.