On how regulating the media is hard - if not impossible

And on why reviving the Leveson Inquiry may not be the best basis for seeing what regulations are now needed

I once came across a quote in a history book which I have never been able to re-find. It was from an acquaintance of I think Lord Randolph Churchill (Winston’s father), or perhaps of Benjamin Disraeli, and it was along the lines of:

“Dear Sir, you do not believe that there are actually solutions to political problems?”

This astonished admonishment from a Victorian politician has lingered.

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There is a conceit in the notion that just because a problem can be stated it thereby can be solved. Maybe this fallacy comes about by reason of human optimism, that articulating a problem means that somewhere somehow it can be remedied.

If course, stating a problem accurately and plainly is a necessary condition of it being solved.

But it often is not sufficient - at least not in terms of public policy.

And one problem is how, if at all, the media should be regulated.

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Not long ago the media were far easier to regulate.

This was because there were fewer media entities to regulate and the ability to publish and to broadcast was more restricted.

Indeed, until the 1990s it was was actually quite difficult for most people to publish or broadcast to the world - or even to circulate things beyond your immediate circle or place. You had to go through gatekeepers who had a near-monopoly of the means of publication and broadcast: newspaper titles, publishing housed, broadcast stations.

From time to time there would be the spirited eccentrics who would, say, set up up a pirate radio station in the North Sea or self-publish books and pamphlets. But such self-publication was derided as a “vanity”.

(Little did they realise the upcoming relentless mass self-publications of social media.)

That such self-publication was possible at least in theory was always an important principle- indeed, it was the original meaning of the phrase “freedom of the press” (a 2012 New Statesman post on this is one of my favourite pieces).

But few if any sensible people had a press at home, even though could have one.

Now most people have access to the means of publishing and broadcasting to the world.

The device you are reading this on is no doubt capable of such worldwide publication or broadcast, at least via a social media platform.

And just as it was once odd to possess a personal printing press or pirate radio ship, it is now similarly odd not to personally possess something capable of far greater publication or broadcast.

For want of a better word, this is an information and communications revolution. A fundamental shift, comparable to the first writing and alphabets, or the invention of movable type.

And the implications of this revolution are still being worked out - if they can be worked out at all.

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How - if all - can media be regulated now that everyone is a potential publisher?

My day job is as a media and communications (and commercial) lawyer - constitutional law is a mad hobby - and I see everyday the attempted use of law and policy to try to make people and companies do things (and not do things) which they otherwise would not do (or would do) but for that law and policy.

Such regulation is hard. Sometimes it is ineffective. Sometimes it is ignored. Sometimes it has unintended effects. Sometimes, even, it works.

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Turning to the wrongful conduct of parts of the news media in the first decade of this century (and before), there is no doubt bad things happened - and there is also no doubt that we do no know the extent of the bad things that happened.

And the one thing that can be correctly said of the Leveson Inquiry - and of the criminal and civil litigation that followed - is that a lot of these bad things were placed into the public domain which otherwise would not have been placed into the public domain.

This was a boon for the public understanding of the news media.

But.

The purpose of the Leveson Inquiry (of which only one of two parts took place) was to use that investigation for the purpose of proposing a new regulatory model.

And this is where there is maybe a category error.

For what happened in the UK news media before around 2012 is not a good data set for regulating the news media in 2024 and beyond.

Indeed, it is far harder to say what is now news media. You cannot walk down Fleet Street and its environs and point, saying “there” and “there” and “there”.

For example, if a freelance journalist has a social media following of hundreds of thousands they often can have a bigger “circulation” than any title they work for. In those circumstances, what practical purpose would there be in just regulating the latter? And if you try to regulate the former, at what point do you stop trying to regulate everyone?

Anyway, please now click here and read my article at Prospect on whether “Leveson 2” should take place.

And tell me and other readers of this blog what you think.

For, dear Sirs and Madams, you - unlike me - may believe that there are actually solutions to political problems.