“The press discharges vital functions as a bloodhound as well as a watchdog”. This view, enunciated by a judge of the highest court of England and Wales in 1999, has sanctioned the persecution of many victims of press brutality. In light of the Leveson Inquiry’s report of November 2012, the courts, government, and Parliament need to realise that the absence of legislation regulating the press is tantamount to letting this bloodhound off its leash.

The above quote was the conclusion of Lord Nicholls as he gave the judgment of a defamation case against the The Times, which had been sued by Albert Reynolds. Reynolds had been leading a coalition government in the Republic of Ireland until its collapse in late 1994. The Times, in its reports that Reynolds had precipitated this collapse by deceiving the Irish Parliament, omitted to include Reynolds’ justifications of his actions. The court, however, allowed his libel claim on the grounds that, although this was publication in the public interest, The Times had been irresponsible to exclude Reynolds’ justifications.

The result was that journalism was to become regulated by the notion of “responsible journalism,” which is also called the “Reynolds defence”. This involves a non-exhaustive list of ten factors to determine whether controversial information should be published, with an instruction that “any lingering doubts should be resolved in favour of publication”. Therefore, in the absence of any legislation, the judges become the main safeguard against irresponsible journalism, and also decide what is in the public interest. This is problematic for two reasons.

Firstly, “responsible journalism” is concerned with outcomes, not processes. The judges are only equipped to guard against defamatory publications, but cannot effectively police the processes leading to publication. As such, the “Reynolds defence” did not prevent serious invasions of privacy through the process of phone hacking, and failed to protect the Dowler family, for example. This will not change without statutory enforcement of responsible press standards. The Leveson report’s suggestions would ensure this by having a regulator to police the processes, as well as the outcomes, of press activity.

The second problem with ‘responsible journalism’ is that unelected judges cannot be expected to interpret the public interest correctly. A leading judge, Lord Griffiths, once remarked that “in the societies of our world today judges do not stand out as protectors of liberty”. Much like media moguls such as Rupert Murdoch, judges represent narrow and privileged sections of society, and are not equipped to regulate the press in favour of the general public interest. Consequently, the absence of regulatory legislation means that the judges’ limited enforcement of responsible journalism generally fails to protect those who are vulnerable, such as the families of dead servicemen, whose phones were hacked by News International.

The press, in the absence of regulation, has “wreaked havoc with the lives of innocent people,” according to the Leveson Inquiry’s report. This has happened through both the processes and the outcomes of publication. The ruthless processes of collecting information have, for example, made JK Rowling feel like the media’s hostage, whilst the outcomes of defamatory publications have led Max Mosley to declare his life ruined. These celebrity victims are examples of prominent victims of irresponsible journalism; the McCann and Dowler families are two examples of ordinary families whose unfortunate plight has been amplified by the lack of press regulation.

The solution is legislation. Legislation, following the guidelines of the Leveson report, could complement this by enforcing responsible journalistic processes. The Leveson report’s proposals need careful debate and formulation into workable legislative policies.

Equally, legislation must balance both the right to privacy and freedom of expression under Articles 8 and 10 of the European Convention of Human Rights. This is no mean feat, but, in conjunction with new defamation laws, it could put a leash on the bloodhound that is the press, and limit its capacity to ruin innocent lives. Robust action in the past could have saved over five million pounds spent in the course of the Leveson Inquiry. Parliament must act.

Disagree? Read the response by James Atkins.