03/12/2012 06:09 GMT | Updated 01/02/2013 05:12 GMT

The Regulation of Rights: Leveson's Reforms are Right but Antidemocratic

The press face a mismatch of incentives and the solutions proposed by the Leveson inquiry are admirable if marginally incomplete. The phone hacking scandal revealed sections of the press to be entirely without scruples in their pursuit of readership, and this is the point: there is a large demand for the tat and lies that this malfeasance achieves. We live in a society built on the idea of charged choice, and by financing this behaviour the public are endorsing it.

The use of illegal or unethical methods grants papers greater readership whilst regulators create no real cost to such methods. It presents an interesting clash of rights. From an individual's perspective regulation denies choice; what right does society have to limit the publication or reading of its denizens? Does the society as a collective have the right to overrule the masses as individuals? Polls show a public overwhelmingly in favour of press regulation, yet as individuals we choose to buy papers which are widely known to use unethical or illegal methods.

This inconsistency within voters draws out a clash between democracy and capitalism; in a neo-liberal democracy citizens have two means of expressing preferences, their vote and their purchases. The vote is more considered but the purchase is more representative. Nobody has voted for improved regulation of the press whilst a great many have chosen to buy from those that need regulating; if we seriously believe authority over society should stem from representation of the citizenry then where is the mandate for regulation?

This leads to another clash of rights: the minority's right to privacy and the majority's right to a free press. If we are going to live in a democratic society then where is the mandate for regulation as a means of preventing press abuse of the minority? If citizens voted and purchased so as to indicate a desire for such regulation then there would be a mandate, but they don't. In fact, not only have they never had the opportunity to vote on more stringent regulation of the press, many of them actually choose to purchase in favour of greater press abuse.

The point here is not to say that the press should remain all but unregulated, it is to highlight how the decision to regulate links to a more fundamental issue of the origin of legitimate power in our society. Those that talk of statutory-based regulation and state regulation as if they are the same are either moronic or manipulative, just as are those who use the 'slippery slope' argument that any change now could deteriorate to future state control of the press. (The latter could be applied to any topic discussed in parliament, and is an argument against poorly formed legislation as opposed to the idea of legislating itself.) However the contention that there is no legitimate mandate to enact greater regulation carries serious weight and bears considerable evidence.

The press requires tough new regulation to stop the current spiral into ever more sordid 'journalism' and to allow some means of recompense for those persecuted by the media: the Leveson Inquiry's proposals would achieve just that and do so in a truly independent fashion. But the public do not seem to agree with this analysis. Those of us who are pushing for greater press regulation should ask ourselves whether, as we seek to balance the right to privacy with the right to a free press, we are in danger of violating fundamental democratic rights.