Leveson and the Living Trees

Like many people, I have been following The Leveson Inquiry intermittently. As someone with a background in regulatory policy, I am particularly interested in the way that many witnesses have expressed a concern that regulation of the press has become inseparable from regulation of the individual because the internet has given any individual with a website (or even just a Twitter account) the power to be a journalist. I think the argument is flawed.

Standard techniques of regulatory analysis help to show why, starting with a structural breakdown of the process by which the product – in this case, a press article – is created and delivered to the consumer:

  • Fact-finding (or “news gathering”): This is the process of finding out raw information other than by reading material that has already been published. This first stage in the process includes good old-fashioned journalism. It also includes behaviour which occupied much of Leveson’s time in the early hearings, such as phone-hacking, which is illegal, and the pursuit of celebrities, which is typically not illegal but has caused much concern, not least to the celebrities themselves.

    It is clear that this step has nothing to do with the internet and can be regulated (or not) without interfering with the benefits which the internet has brought us.
  • Converting the raw data into publishable content: This is essentially the process of writing-up the content or selecting photographic image(s) in a form for publication. It is a necessary step in the process on the road to publication, but the unpublished word seems to present no regulatory issues.
  • The decision to publish: This is the point at which someone decides to make the output from step 2 publicly available – whether for purchase or free of charge, and in hard-copy or online. It is the step which featured, in various ways, in evidence to Leveson from witnesses such as Max Mosley (who has argued for advance notice before private information about individuals is published) and Alastair Brett (who was involved in the Times Newspaper’s decision to reveal the name of the NightJack blogger).
  • The distribution of published material: This is the process of passing on the published word to readers. In my (current) analysis, it includes printing and distributing hard copy, making content available online and aggregating existing publications into new formats.

    It may be that there needs to be a sub-division within this activity, but if the decision to publish (step 3) was properly taken, there is plainly no need to restrict the distribution and, if publication was improper, it seems to me that the appropriate target for regulatory action is the publisher not the mechanism by which it was distributed. The sole exception would be a distributor who deliberately distributed material which they knew had been published in breach of the regulations. On that basis, there is no reason why search engines and other automated news aggregators would be, or need to be, brought within the ambit of any regulations.

More work may be needed but, at first sight, this analysis suggests that steps 2 and 4 might essentially be free from regulation and step 1 can be regulated as if there were no internet because the internet plays no part.

That leaves us with step 3: the decision to publish. Here the internet does play a part, because it enables virtually anyone to be a publisher. Lord Justice Leveson has told us that he is keen not merely to be regulating “work produced on dead trees” (page 81 of Rupert Murdoch’s second day of evidence). But, in terms of his inquiry, it is only the publishers with power (or influence) who are a concern.

I have yet to determine a metric for determining which publishers have “power”, but I venture to suggest that is more sophisticated than mere readership (otherwise, Stephen Fry’s Twitter account, with over 4 million followers, would seem to qualify).

My current hypotheses for further investigation are (a) a measure of the readership multiplied by the volume of words published (which would rule out not just Twitter accounts, but actually most single-handed blogs too) and (b) a combination of readership and news-gathering power. I may be mistaken here, but it seems to me that the “press” we worry about are those who publish “news” (and comment), not those who publish only comment.

[Update (26 July 2012): I have written a follow-up post about the form of a regulatory system – see Leveson could legislate for a non-statutory regulator.]

[Further update (30 November 2012): Lord Justice Leveson has now published his report. He addresses the above issues in Volume 4 on pages 1791-93, in the following terms:

Para 6.5
“… the coverage of a new regulatory system should encompass those who undertake activities likely to involve … the gathering of information about people and current affairs, for the purpose of, or in relation to, publication of news and information; and the publication of information about people and current affairs.”

Para 6.17
“… when considering who should not be able to opt out of standards regulation, the measure to be used should be a materiality threshold based on influence.”

Para 6.20
“It is more difficult to be clear about what types of online service clearly should be inside or outside of a regulatory system. However, it would clearly be appropriate that websites providing news coverage aimed substantially at a UK audience, with a substantial stable audience should be covered by any new regulatory system.”]