What is the reading public to make of the Mexican stand-off between politicians and the press? Each has produced a royal charter to regulate the behaviour of journalists, which threaten up to £1m in fines and even more in "exemplary damages" with forced front-page apologies for breaches of taste or privacy. Both claim to implement the recommendations of Lord Justice Leveson – one by law, the other by industry agreement. But both threaten free speech and neither will encourage the adventurous investigative journalism needed to expose the corruption and hypocrisy of the powerful.
What is remarkable about the current conflict is the way the Leveson report is being treated by both sides as holy writ – Ed Milliband promised to implement it before he had even read its 1,900 pages. Moreover, Leveson is a judge, a fine one certainly, but in Britain judges have a poor record in protecting free speech. Remember how the law lords banned Spycatcher after it was published everywhere else in the world? And how they imposed so many sexist superinjunctions, gagging women who wanted to tell the truth about heartless lovers? Or how they insisted on protecting the likes of Barclays bank and the manufacturers of the foetus-deforming drug thalidomide against exposure by investigative journalists? They once even condemned as a criminal a public-spirited solicitor who showed court documents about mistreatment of prisoners to a journalist – the solicitor in question being the young Harriet Harman. It took the European court to reverse the judicial assaults on free speech in the Harman and thalidomide cases and it is likely to be called on again if either of these charters receives royal assent.
Take, for example, their plans to make newspapers publish grovelling apologies when the regulator thinks they have erred. A forced apology is not only a contradiction in terms (apologies should be sincere) but is actually a denial of free speech precisely because it is forced speech and it is false speech. It should never be the role of a regulator in a democratic society to force editors to publish apologies in which they do not believe.
That was one Leveson recommendation which I flatly rejected when asked by the government of Mauritius to prepare a similar report about that country's media. I also rejected the unjust idea of obliging newspapers to pay the costs of cases brought against them unsuccessfully, merely because they had declined to join a regulatory body. Editors who stand behind their story and prove its truth against dishonest claimants should be entitled to all their costs: to force them to pay the legal costs of the other side is a miscarriage of justice. So too is the plan to impose "exemplary damages" on small circulation magazines that refuse – for good reason – to sign up to be regulated. These damages might run into millions and could force the closure, not only of Private Eye, but of valuable political journals such as the New Statesman and Standpoint. The proposal that editors would face fines of up to £1m, which features in both charters, is wrong in principle; fines should only be imposed by a court, and not by a group of amateur worthies that both charters install (in different ways) as "surveyors of the press". These Leveson recommendations would turn free speech into expensive speech.
But of course the press needs some regulation. That is shown by the allegations of massive criminality against those who ran the News of the World, and who are accused of authorising payments to hack the phones of anyone whose secrets might be saleable. The suspects will soon be put on trial and if convicted, prison sentences will deter newspapers tempted in future to breach the law. Thanks to the European convention we now have a civil law against invasion of privacy and the prospect of damages and legal costs provides a disincentive to media intrusions which are not in the public interest. Regulation beyond these laws is required as a means of monitoring the accuracy of media reporting, to enable the public to complain about falsehoods or bias in the presentation of news and to ensure that newspapers which criticise individuals should allow them a right of reply. Regulation, in other words, should serve the interests of truth and of fairness, and go no further.
The best means of securing a speedy and inexpensive correction of false news is not by the cumbersome methods laid down in the charters, but by the tried and tested mechanism of an ombudsman, empowered to mediate disputes and, if unsuccessful, to hear evidence and decide whether the complainant should have a remedy by way of an order for correction or a right of reply. In contested cases the ombudsman would give a reasoned adjudication, a summary of which might also be ordered to be published, with a prominence that would draw it to the attention of readers who would otherwise have been misled. My report rejected the imposition of fines, but made provision for successful complainants to be reimbursed for expenses and to compensated for any loss actually suffered. The ombudsman could also deal with seriously damaging posts on social media (a problem neglected by Leveson), providing on their own website an adjudication that would authoritatively nail the lie.
Statutory underpinning, as Leveson rightly found, is necessary if any form of regulation is to be effective and to enjoy public confidence. The ombudsman's office would be established by law, but with powers that no one could rationally argue would impinge on freedom of expression. It would have the power to order publication of adjudication – and if a newspaper thought the decision was wrong it could challenge it by way of judicial review. This would avoid the worst consequence of an anachronistic royal charter, namely the perception abroad that the British press is controlled with the approval of the head of state – a green light for other governments, especially in the Commonwealth, which are looking for an excuse to impose oppressive state control on their media.
The only workable form of press regulation that can achieve public confidence is one that is entirely free both of political influence and of media interests. For that reason the ombudsman must have no political or industry ties, and an office staff with experience at investigating and fact finding. He or she should be responsible to a body on which editors are represented but are not in the majority – a body that is responsible for keeping the code of conduct up to date, for organising ethical training for journalists, and (importantly) for speaking out against threats to press freedom from whomsoever they come – MPs, local councils, media proprietors or (and in particular) judges.
David Cameron says that his mind is still open and he is prepared to look at the charter offered by newspaper interests as well as the charter that politicians agreed in Harriet Harman's office in the early hours of the morning. He should remember that readers want regulation that is independent both of politicians and of the press and for that reason reject both charters in favour of an ombudsman system that cures abuses of free speech by the simple expedient of ordering more speech.
** Geoffrey Robertson QC is author of Robertson and Nicol on Media Law