The Leveson inquiry has put fear into the feral beasts of the tabloids – and that’s not in the public interest

Listening to Kelvin MacKenzie give evidence to the Leveson inquiry on Monday, the most striking thing was not his admission that he’d never given much thought to journalistic ethics nor even his impersonation of John Major, good though it was. Rather, it was his claim that News International should have been fined for lying to the PCC about the extent of phone hacking at the News of the World. ‘In the end newspapers are commercial animals,’ he said. ‘I would be in favour of fines — and heavy fines for newspapers that don’t disclose the truth to the Press Complaints Commission.’

This is significant because it’s hard to imagine how a press regulator could impose large fines on newspapers without that power being granted by statute. After all, if the fines were voluntary, why would anyone pay them? In other words, the most famous tabloid editor of the last 30 years, a man not known for his obeisance to the powers that be, is recommending statutory regulation of the press.

That’s a remarkable turnaround. For those of us who love the red-tops and consider them a useful counterweight to the self-importance and arrogance of the ruling class, Kelvin is something of a hero. The Sun under his stewardship (1981–94) was everything a good tabloid should be: irreverent, funny, rambunctious, saucy, anti-Establishment. It seemed to spring from that same place in Britain’s psyche as Carry On films and Donald McGill postcards. Things must have reached a pretty pass if even Kelvin is acknowledging that the party must come to an end. It’s as if an archetypal British outlaw, the tabloid equivalent of Jerusalem’s Rooster Byron, has finally decided to embrace respectability.

This is the real threat posed by the Leveson inquiry — not that Lord Justice Leveson will recommend full-blown statutory regulation, though he has declared that simply ‘tinkering around the edges’ of existing regulation won’t be nearly enough. But that the red-tops will feel obliged to behave more like the broadsheets, thereby losing much of their mass-market appeal. No more celebrity tittle-tattle, no more kiss-and-tells. The News of the World has already gone to the wall. How long will the rest of them survive in a post-Leveson world? Most of the red-tops are on their knees as it is and if they find themselves having to abide by an FT-style ‘code of ethics’, they won’t last 12 months.

This would probably be welcomed by politicians, who are still smarting from the expenses scandal, and keen to punish hacks. It would also be good news for the high-ups of the liberal Establishment, who use words like ‘contaminate’ and ‘toxic’ to describe the impact of the tabloids on British public life. But it wouldn’t be good for democracy. Remember, alongside the stories about Premiership footballers and reality TV stars, the red-tops also publish a good deal of serious news and analysis, brilliantly condensed into readable, clear little paragraphs without all the self-important throat-clearing broadsheets enjoy. If they go to the wall, their readers are unlikely to get that information from anywhere else.

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That’s not just the opinion of tabloid apologists like me. It used to be the view of the courts as well. The same point was made by Lord Woolf in his 2002 appeal court judgement that found against the captain of Blackburn Rovers, who was trying to stop the People running a kiss-and-tell story about him: ‘The courts must not ignore the fact that if newspapers do not publish information which the public are interested in, then there will be fewer newspapers published, which will not be in the public interest.’

So why has a legend like Kelvin Mackenzie decided to go along with this attempt to ‘decontaminate’ the red-tops, given the harm it could do? It certainly wasn’t his first impulse. Back in October, he complained that the future of press freedom had been entrusted to ‘a judge who couldn’t win when prosecuting counsel against Ken Dodd for tax evasion’. But he subsequently apologised for this remark and has now reined himself in, as have most of his tabloid colleagues. It’s noticeable that not a single kiss-and-tell story has broken since the inquiry began.

I suspect Kelvin is following the lead of Paul Dacre, the biggest beast in the tabloid jungle. To everyone’s amazement, Dacre came out in favour of limited statutory regulation when he spoke at one of the ‘seminars’ Leveson held last October. In addition to statutory fines in cases of ‘extreme malfeasance’, Dacre called for the creation of a press ombudsman to sit above a body like the PCC, thereby ensuring its code was adhered to. In the course of investigating press scandals, Dacre said, this new official should have the power to summon witnesses and compel them to give evidence.

Before this, Dacre had been a staunch defender of the system of self-regulation we have at present, but he’s clearly concluded that some form of statutory regulation is unavoidable. That certainly seems to be the way the wind is blowing, judging from Leveson’s remarks during the testimony of FT editor Lionel Barber on Tuesday, in which he said the press has been allowed to remain in ‘the last chance saloon’ for too long. Dacre is gambling that if he and his colleagues demonstrate a willingness to accept ‘co-regulation’ —a combination of self-regulation and an ombudsman with limited statutory powers —then the doomsday scenario of full-blown emasculation can be avoided.

In addition, Dacre may have concluded that the battle to preserve the freedoms the tabloids depend on has already been lost. In 2008, he gave a speech to the Society of Editors in which he railed against the imposition of a privacy law by Justice Eady, who had repeatedly ruled that celebrities and other public figures were entitled to protection from tabloid intrusion by Article 8 of the Human Rights Convention. That effectively put paid to kiss-and-tell stories, the biggest driver of tabloid sales.

This view is echoed by Roy Greenslade, ex-editor of the Mirror and the Guardian media blogger. ‘The Max Mosley judgement changed everything because it enshrined the principle that there needs to be a public interest defence for kiss-and-tells and that some sort of prior notice is now necessary which enables people to get injunctions more easily,’ he says.

Opponents of ‘co-regulation’ argue that there’s no need for a body like the PCC to have a statutory backstop, because the press is already constrained by the Human Rights Act, not to mention the laws against bribing public officials and phone hacking. But most Fleet Street editors appear to have concluded that this is a reason not to oppose limited statutory regulation because they have little left to lose. Provided the new, re-badged PCC, along with the ombudsman, don’t erode press freedom any further, why not be seen to be embracing the ‘clean up’?
The trouble with this position is that tabloid editors have effectively ceded the moral high ground to the puritan critics of the tabloids. Some of the inquiry’s witnesses have drawn attention to the new threats to press freedom — privacy law, super-injunctions, libel tourism — but these voices have been drowned out by celebrities complaining about invasions of privacy. By allowing that some form of statutory regulation is necessary, Fleet Street’s panjandrums have effectively sided with Hugh Grant and Steve Coogan.

As I say, my worry is not that the Leveson inquiry will lead to a raft of draconian regulations. Rather, it’s the impact it will have on the culture of newsrooms. It’s not just a public inquiry; it’s also a tribunal designed to publicly shame wayward hacks. (‘I ask the questions,’ said David Sherborne, slapping down Piers Morgan.) And if no one takes up the cudgels on their behalf — not even Kelvin Mackenzie — they’re going to behave much more cautiously from now on. That’s regrettable, because a cleaned-up tabloid press is unlikely to last very long in the current economic climate.

Another thing to bear in mind is that paparazzi photographs and celebrity tittle-tattle are hardly likely to disappear, however successful Leveson’s efforts. If the red-tops become too fearful of public censure to carry salacious stories, their readers will turn to the internet instead. The difference is that sites like TMZ don’t include any serious content alongside the pictures of Paris Hilton and Lindsay Lohan flashing their knickers.

Throughout the inquiry, Leveson has been worrying away about how to devise a system of regulation that encompasses the internet, but that’s virtually impossible. Bloggers like Paul Staines, aka Guido Fawkes, are careful to place themselves outside the jurisdiction of the British courts, thereby absolving them of the need to comply with the diktats of a revamped PCC, regardless of its statutory powers. In his testimony on Tuesday, Lionel Barber expressed the hope that being a member of the new regulatory body would be such an imprimatur of respectability that news aggregators like the Huffington Post would join it voluntarily. Perhaps, but the internet equivalents of the red-tops wouldn’t, and press regulation is a bit like a financial transaction tax in this respect: unless everyone is bound by it, all it succeeds in doing is putting those it does apply to out of business.

Maybe the internet will destroy the tabloid press willy-nilly, just as it will destroy the broadsheets in due course, and anyone who thinks otherwise is being naive. Nevertheless, I hate to see the red-tops go down without a fight. Watching one tabloid editor after another abase themselves before the inquiry is a dispiriting sight, reminiscent of a Stalinist show trial in which those who’ve fallen out of political favour admit their guilt before being led off to the gallows. How much more satisfying it would be to see the red-tops engaging in a last hurrah, using every weapon in their arsenal to ridicule Lord Justice Leveson and his army of pompous lawyers. Yes, it might have been tantamount to signing their own death warrants, but if you’re going to die anyway, why not go out in a blaze of glory? It would have been the tabloid version of Rorke’s Drift. And perhaps it would have brought the public to their senses, and encouraged them to rally behind tabloids and remember our national sense of fun.

Meanwhile, the show trial continues, with another vanload of ink-stained wretches waiting in the dock.

This article first appeared in the print edition of The Spectator magazine, dated