Phone hacking: Establishment still in dock

The problem is not ‘irresponsible gutter journalism’, argues Paul Demarty

The phone-hacking scandal has alighted again onto the front pages, if only of the ‘quality’ press, and it is almost like old times.

Rebekah Brooks and Andy Coulson, both former editors of the late News of the World, are in the dock on charges - which they deny - of conspiring to pervert the course of justice. Some rather startling allegations of cloak-and-dagger damage limitations have been made by Andrew Edis on behalf of the crown. A good deal of attention has accrued to a quite striking story, in which Brooks and her husband are purported to have ditched a series of computers, involving the then head of security at News International, black bin-liners full of electronics being left lying around, coded text messages and a bogus pizza delivery.

Brooks is also alleged to have attempted to put together an internal report on phone-hacking that would exonerate her and put Les Hinton (the former NI chief executive) and Colin Myler (the last editor of the NotW) in the frame. In all, the prosecution seeks to paint a picture of the two as presenting unbelievable accounts of their role in the hacking crisis, and seeking cynically to save their own skins.

In response, the defence has a number of claims; principally, that it is unrealistic to expect an editor to be intimately aware of the provenance of every last word in a paper; that “fierce and intense” competition between journalists on the paper - likened by Coulson’s lawyer, Timothy Langdale, in one telling phrase, to a “story factory” - led to sources being obscure to those higher up the editorial food chain.1

Who to believe here is, naturally, a matter for the jury. We must make an observation, however. Let us assume that Brooks, Coulson and their counsel are telling god’s own truth about everything; that they were indeed unaware of the sordid origins of many of their stories, of Glenn Mulcaire’s book of voicemail PINs and all the rest. Let us assume that Langdale is correct - a modern tabloid is a “news factory”, with editorial leadership operating at a high level of abstraction from the meat and potatoes of news-gathering.

We would then, surely, have to conclude that underhand tactics - criminal or otherwise - would inevitably result from this set-up, and that the proper oversight that management is notionally supposed to provide on the whole process was, with the best will in the world, impossible. Indeed, whatever Brooks’ and Coulson’s (or anyone else’s) personal level of culpability for this disaster, there is more than a little truth to this picture - that the sins of the mass media, such as they are, are structural, and have to do with the nature of press institutions and their relationships with broader society.

Indeed, that was precisely the lesson of the shady goings-on at the News of the World, if ever there was one; we all knew that politicians trod lightly around Rupert Murdoch’s media empire, but suddenly the incestuous reality of the British establishment was put under a harsh glare. There did not seem to be a major politician or top cop in the country who had not been entertained on the Murdoch shilling; the foot-dragging of the Press Complaints Commission and the Metropolitan Police suddenly took on a sinister air. This was not a crisis of the press, but a minor crisis of political legitimacy across the board.2

All has been conveniently forgotten now. Recent days have seen the signing of the royal charter on press regulation, which would create a new regulator with ill-defined statutory underpinning for newspapers. The most offensive clauses of the new regime (principally, large costs awards in libel trials against the defendant even where the defence is successful) have already been passed into law, very much on the quiet, in the Crime and Courts Act.

Nevertheless, the press barons have boycotted it, and are pressing forward with their own new self-regulator, the Independent Press Standards Organisation (Ipso). We now have the bizarre situation where the much-vaunted post-Leveson settlement is already, in effect, dead in the water so far as its supposed purpose is intended; the ‘side effect’ of restricting free speech when it comes to smaller fry than the major national papers, however, is already in force.

It is difficult to see this farcical kludge as anything but inevitable, given how things have turned out. There is some truth to the persistent howls of anger from Hacked Off types, to the effect that the politicians have ‘chickened out’. There are very good reasons, from the politicians’ point of view, as to why they should; a compulsory system of statutory press regulation is a one-way ticket to Strasbourg; such systems are explicitly outlawed by the European Convention on Human Rights, after all.

The alternative they came up with - punitive costs awards and so forth - is ingenious to a point, but also an invitation for the press barons to call the government’s bluff. This is exactly what they have done. Those papers sympathetic to an overhaul of press regulation - the Guardian, Independent and Financial Times - have expressed that choice simply by not signing up to Ipso either. Nobody believes for a second that the government’s hopeless compromise, cooked up in the virgin hours of a Monday morning before a slew of revisions in the cold light of day, is anything other than an embarrassment.

Change of story

So we have ended up in the worst of all possible worlds. The ‘self-regulation’ cartel will continue, the only change being that its cartelism is reinforced. The punitive damages awards will merely set the bar even higher for entry into the press elite.

But something more important has happened, which is less strictly definable. Somewhere along the line, the story changed. It was once the crooked, corrupt relationships between three species widely detested by the general population - the press, politicians and police - which was under examination after the phone-hacking affair. Yet here we are, a year and a half later, and only the press remains in the spotlight. It is Rebekah Brooks and Andy Coulson in the dock - not Jeremy Hunt or Paul Stephenson. The problem has become ‘How can we stop the press misbehaving?’, rather than ‘How can we break this crooked circle-jerk at the top of society?’

Equally, the discourse has shifted to the question of ‘limits’ to free speech. The increasingly tiresome Steve Coogan is always on hand to say that this is not about ‘restricting free speech’, but ‘clamping down on irresponsible gutter journalism’. No, Steve - it is about restricting free speech. Freedom is indivisible - the right to print allegations of impropriety against some politician is the same right as the gutter press has to pry into the lives of celebrities. This is the age of Google. You do not, and never will, have privacy. Deal with it.

The usual admonitions - ‘You do not have the right to shout “Fire!” in a crowded theatre’ - entirely miss the point. If you are a democrat, then your approach to this problem is to try to push the boundary of what is permitted as close as possible to the crowded-theatre scenario. You do not work in reverse, and draw ever more tortured analogies to a physically threatening speech act.

Worst of all, it allows the great and the good to be ‘seen to be doing something’, while reinforcing the atrocious defamation laws in this country. Let us be clear: free-born Englishmen do not have the right to free speech. We have no first amendment. What we have is mounds of legal precedents and marginal legislation which add up to a scenario in which there is a level of freedom of expression. This is not an inalienable right; nor is its truth self-evident. The punitive costs awards somehow make Britain more plaintiff-friendly; which is to say, more friendly to the wealthy, as they try to hide their dirty little secrets.

That Brooks and Coulson should be on trial at all makes the rush to more restrictive press regulation look all the more stupid. Why are they on trial? Because phone-hacking has been a criminal offence since the Regulation of Investigatory Powers Act of 2000, and so attempting to cover it up, as they are alleged to have done, amounts to a criminal conspiracy. It was already a matter for the criminal courts, long before Glenn Mulcaire and Clive Goodman were packed off for their stays in one of her majesty’s penitentiaries.

So why has it taken so long for Brooks and Coulson to have their day in court? If there is enough evidence to prosecute them now, surely there must have been years ago. This brings us back to the real issue: the mass media is an institution of class power, which other such institutions were all too happy to protect until the last possible moment. If you want to destroy the gutter press, all well and good; but doing so means a complete reconstruction of the political status quo; and, more to the point, doing so requires absolute fidelity to the fight for free speech. You cannot regulate capitalist oligarchy out of existence with a royal charter. paul.demarty@weeklyworker.org.uk


1. The Guardian November 4.

2. See M Macnair, ‘Leveson, libel and lucreWeekly Worker October 17.