A little over 10 years ago, on 21 March 2002, a thirteen year old English schoolgirl named Amanda Jane ("Milly") Dowler went missing on her way home from school. Although the Police announced a week later that she had probably not been abducted, she remained missing for the next six months, during which time messages were deleted from her mobile phone voicemail box, leading her family and friends to believe – quite wrongly – that she was still safe. In September 2002 her decomposed remains were discovered in woods in another part of the country by mushroom pickers. The deletion of her phone records was to remain a mystery for another nine years. In the meantime, in 2005, personal information concerning Prince William and Prince Harry began appearing in a column in the News of the World newspaper written by its royal correspondent Clive Goodman. The private nature of that information suggested that there had been unlawful access to the voicemail messages of members of the Royal Household close to the two princes. The Royalty Protection Department contacted SO13, the anti-terrorism branch of the Metropolitan Police, which initiated an investigation named Operation Caryatid, which would eventually lead to the imprisonment of Clive Goodman, the prosecution of numerous other people, the closure of the News of the World newspaper (once the biggest selling English language newspaper in the world), and the appointment of Lord Justice Leveson to inquire into the practices and ethics of the British press.
At the heart of the phone hacking scandal was a private investigator named Glenn Mulcaire who was paid a weekly retainer of some £2,000 by the News of the World, plus further sums for specific work, and was said to have received a total of some £1 million for his private information sourcing services. The police investigation into Mulcaire's activities eventually uncovered unlawful access by him and others to the mobile phone messages of numerous prominent people including the deputy Prime Minister John Prescott (now Lord Prescott), other Members of Parliament, senior military figures, international footballers including Ryan Giggs and Ashley Cole, the manager of the England football team Graham Taylor, film stars including Jude Law, Hugh Grant and Sienna Miller, the comedian Steve Coogan, and other celebrities such as Elle Macpherson, Charlotte Church, Jemima Khan and Ulrike Jonsson. A number of these celebrities sued the publisher of the newspaper and received substantial settlements. But it was not the hacking into the phones of the Royal Household or film stars that led to the Leveson Inquiry. It was the public outcry and outrage that followed the revelation in 2011 that journalists had also earlier hacked into the mobile phone account of the murdered schoolgirl Milly Dowler, and had deleted messages which might potentially have been important evidence, in order to make room for new messages that they could then also listen to; in the process leading her family to believe that she might still be alive.
After nine months of hearings and over 300 witnesses Lord Justice Leveson has now released his long-awaited Report on the Culture, Practice and Ethics of the Press, and announced his recommendations for the future governance and regulation of the Press. The key recommendation is that a new regulatory body be established, which would be independent of the press and the Government, and which would promote high standards of journalism and protect the public interest and the rights of individuals. In order to ensure the independence of this body it would not include any serving editor or politician. Such a body would be self-regulatory, and would be empowered to set and enforce standards, hear complaints, and provide a quick and inexpensive arbitration service to deal with civil law claims. Newspapers would have the option of becoming members. The operation of the new body would be monitored by an existing regulator such as Ofcom (the independent regulator and competition authority for the UK communications industry). Lord Justice Leveson warned however that if newspapers were not prepared to join the new body it would then be necessary for Ofcom to act as a regulator of the press. Mindful of England's 300 year heritage of press freedom, Lord Justice Leveson took care to describe the proposed new regime as "self-regulation" by the press, rather than statutory regulation of the press; but given that the new body would be established by statute, imposed on the industry, and be entirely independent of the press, the British media have unsurprisingly not seen it in quite the same way, and have not been mollified by the separate recommendation to enact a new legal duty on the Government to protect the freedom of the press.
Like England, New Zealand has a free press, as that term is generally understood. Under s.14 of the NZ Bill of Rights Act everyone in New Zealand has the right to freedom of expression; and by virtue of s.5 that freedom should be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. This freedom, even though only relatively recently guaranteed by statute, is the legacy of many battles fought over many centuries in the western liberal democracies to extricate the press from control, censorship, licensing, taxation and other forms of interference by the state and the church.
It is however too easy in New Zealand to take the freedom of the press for granted. It is not unusual to hear politicians, judges, commentators, friends and colleagues bemoan the quality of news reporting, despair at the content of news programmes, criticise the standards of newspapers, and generally treat the press as something common and a little distasteful. This attitude to the press seems to overlook two important things. The first is that to be a free press, the press must be free to publish what it wants to publish. Freedom of the press means that as well as reporting the proceedings of Parliament and the utterances of politicians, newspapers can also report petty disputes between neighbours and stories about lost pets. In addition to reporting the proceedings of the Courts, newspapers can criticise sentences which appear inadequate, decisions which seem wrong, and judges whose decisions appear inane. In addition to reporting the outcome of international sporting fixtures, newspapers can report the drunken antics or criminal behaviour of sports stars off the sports field. If celebrities walk our streets or play on our beaches you can see the pictures in the paper. If there are difficulties in the romantic lives of celebrities you can read about that in the magazines. Freedom is the freedom to publish gossip as well as serious investigative journalism. The second thing that critics of the content of newspapers seem to overlook is that newspapers are a business, and they are largely a paper business in a world that is increasingly digital. If newspapers are to stay in business then they have no option but to publish what the public wants to read, ie content that "sells newspapers"; and criticism of the content of newspapers is really therefore just criticism of the tastes of the general public. People who sniff at the publications of the free press really don't know how lucky they are. No-one but the sworn enemies of western liberal democracy should want the alternative, ie a press which is not free; not free to criticise the government; not free to embarrass politicians; not free to lampoon the pompous and identify the fools; not free to criticise the courts or judges; not free to campaign for justice; not free to expose wrongdoing, corruption or hypocrisy; not free to take any side in public debates; not free to say what needs to be said on any subject; not free to express any editorial opinion; not free to publish all aspects of the minutiae of daily life in New Zealand no matter how seemingly trivial; not free to publish photographs of celebrities; not free to publish gossip; not free sometimes to be wrong.
It is very easy, in the wake of an affair of the proportions of the British phone hacking scandal, to conclude that the press is rather too free, is a touch feral, is out of control and needs to be ruled and regulated, overseen and controlled. But, awful though the phone hacking affair undoubtedly was, this is not the right conclusion to draw from it. It is important to remember that the activities carried out by Glenn Mulcaire and Clive Goodman were completely unlawful and could have occurred under any regulatory regime. Mulcaire and Goodman were caught and punished. Many others are currently being prosecuted for their roles in the affair. The News of the World has ceased to exist. Many of the people whose privacy was infringed have sued and recovered substantial damages. It was a newspaper, the Guardian, that broke the story of the full extent of the hacking, when the police had decided that it would be better not to alert all of the victims. It was also the Guardian that broke the news of the hacking into the messages on Milly Dowler's phone which led directly to the Leveson Inquiry and brought down the News of the World.
Lord Justice Leveson knows very well the importance of the freedom of the press - he quoted John Milton's 1643 line "Give me the liberty to know and to utter and to argue freely according to conscience, above all liberties", and also Thomas Jefferson's "Where the press is free and every man able to read, all is safe". This is no doubt why he felt it necessary to downplay the nature of his proposed new regulator, and to try to sweeten the deal with a statutory duty to protect the freedom of the press. Even so, the British Government rejected the proposals so immediately following their release that there could hardly have been time to read them.
Here in New Zealand there are continuing impediments to freedom of expression, and still battles to be fought and won for the freedom of the press. We had state interference in media coverage of the last general election when police officers entered newsrooms in the closing stages of the campaign to seize copies of the "teapot tapes". We had New Zealand Herald journalists banned from Parliament for ten days following the publication on the Herald website of a photograph of a man who tried to jump from the public gallery into the debating chamber. We had complaints upheld by the Press Council against one of New Zealand's most senior and respected journalists for saying what he really thought about the conduct of political protesters on Waitangi Day. We have expansionist privacy laws elbowing freedom of expression aside. Our defamation law has not kept up with developments in other common law jurisdictions with the result that it has a chilling effect beyond that which is inappropriate in the modern age. Suppression orders are regularly being made by Courts and tribunals in circumstances which do not satisfy the proper criteria for such orders. And it can often then be difficult or impossible to ascertain what exactly has been suppressed. We have controversial restrictions on what can be reported about suicides. We even still – in the 21 st century – have a blasphemy crime on our statute books, and it is punishable by a year's imprisonment so I would literally risk being jailed for elaborating freely on what I think about that. We have seen New Zealand drop out of the top ten ranked countries for media freedom. With all this and more to contend with when considering what can safely be published we certainly do not need any additional regulation of the press in New Zealand of the sort recommended by Lord Justice Leveson for the UK.
Postscript: It is not generally known, but it eventually transpired that although Milly Dowler's voicemail messages had been improperly accessed by journalists, the missing messages had actually been deleted automatically by her phone.