'A watershed and a very bleak one for press freedom' - why press regulation is a step too far

The political debate around the new system of press regulation being put in place has been too often confused and emotional, with much of the detailed discussion and negotiation – whether between the political parties, with the Hacked Off group representing many of the victims of phone-hacking, and with and between the main newspaper titles – being behind closed doors.

What was clear though, even before the Leveson inquiry and certainly by its conclusion, is that the UK’s previous Press Complaints Commission had not functioned effectively and with a wide enough remit or powers. Most, if not all, could agree that a stronger, more independent regulator was needed. But how that independence was defined, and whether the new regulator was in some way enshrined or underpinned in law (giving rise to the phrase ‘statutory underpinning’) has been at the core of the debate.

The messy and undesirable outcome is one where a Royal Charter – an ancient UK form of institutional set up – will establish a new press regulator. Such Royal Charters are presented to the Queen by the Privy Council which has ministers on it. David Cameron thought this route would mean he could claim he hadn’t passed something like a press law – which he called crossing the Rubicon (of press freedom). But a Royal Charter already means political interference or a clear political role in defining how an independent regulator is established, is monitored itself for independence, and what are some of its key mandates such as the ability to direct the placement of apologies and corrections.

Opposition leader Ed Miliband, and Cameron’s coalition partner Nick Clegg, insisted this wasn’t good enough – the Royal Charter had to be underpinned in law. And so an amendment to the Enterprise Bill currently going through Parliament will do just that, saying that MPs must have a majority vote before the terms of any Royal Charter change. Meanwhile the press Royal Charter says that it cannot be changed without a two-thirds majority vote in both houses of parliament to do so. So MPs and Lords are debating the Royal Charter and press regulator, voting on how the conditions surrounding it can and can’t be changed.

There are further major areas of concern. Parliament voted on Monday – by 530 to 13 votes – to add an amendment to the Crime and Courts Bill which will allow exemplary damages to apply (in certain circumstances) to news publishers who do not voluntarily join the regulator. The Royal Charter also states that it applies to those publishing news online, with news defined so broadly that it includes gossip on celebrities. Further amendments to bills are narrowing exactly who this may apply to online, setting out exclusions and limits – but it still risks applying widely online and having a chilling effect. And since Leveson barely addressed the internet, this rapid legislating on net regulation is risky and very undesirable.

The new regulator, as set out in the Charter, will also have the power to direct where apologies and corrections are made in newspapers. This is a significant intervention into powers that normally lie with editors and may well contravene the European Convention on Human Rights.

Overall, it is a sorry tale of political confusion and a failure to defend basic principle of free expression and a free press. We are witnessing the politicisation and legal underpinning of press regulation in the UK. It is a watershed and a very bleak one for press freedom.