12/11/2012 11:03 GMT | Updated 12/01/2013 05:12 GMT

Leveson: Over the Regulatory Cliff?

The pips are squeaking. As the deadline approaches for Lord Justice Leveson to make his recommendations on press regulation to the government, the public debate gets more strident. Rumours abound that he will recommend a role for the state. The chairman of the Press Complaints Commission urged him in a speech last night not to go down this path. A group of 40-odd Tory MPs and peers pressed the prime minister last week not to dismiss statutory regulation. Meanwhile, the big guns of the British press relentlessy bombard the trenches of those who would see them governed by the state.

In the old days of the Soviet Union, the Communist Party newspaper, Pravda, would use the phrase "life itself" to make a clinching argument. During the Leveson hearings, life itself has thrown into sharp relief the real-world difficulties and dilemmas of press regulation.

Just consider. Earlier this year the limits of supposedly tough statutory regulation, in this case French, were brutally exposed by the cavalier publication of photos in a French magazine of a topless Duchess of Cambridge on a private holiday. Then, the widely-admired Irish model of regulation, backed by "light-touch" statute, proved no deterrent to the photos' re-publication in the Irish Daily Star, something the entire UK press turned its back on (the shadow of Leveson may have played a role here, but the reproduction of the photos would have been a straight breach of the PCC's Code of Practice).

Most piquant of all, no sooner had the parliamentarians' letter mentioned above landed on the No. 10 doormat - commending the benefits of state regulation for television, no less - than the BBC sunk into the mire with its second Newsnight calamity. Meanwhile, over at ITV Philip Schofield flashed his list of alleged pedophiles in careless and unsuccessful ambush of the PM. The Daily Mail was not alone in pointing out that, if statutory regulation could not prevent excesses on this scale in the broadcast media, it was hard to see how it could be a panacea for the press.

These stories had one thing in common. They all reflected the power of the internet and Twitter to warp and out-run traditional journalism. The McAlpine smear gained a million legs because of Twitter's prodigious power of dissemination. The penny should have dropped long ago that we have radically to alter our traditional notions of what constitutes the "press" and how it should be regulated. Yet, much of the debate between those for and against statutory regulation is like an exchange of broadsides between obsolete battleships in an age of drone warfare. Statute has been prayed in aid to ensure that all mainstream press organisations are brought within a post-Leveson regulatory body. This is to deal with the problem of the press baron, Richard Desmond, who in a huff withdrew his titles from the PCC system. But, here's the rub. A newspaper like Desmond's Daily Express is of minor account when set against the vast and growing concentration of online journalism which lies beyond regulation. That is the core regulatory challenge. No amount of statute, remotely consistent with our basic freedoms, will be able to coerce digital journalists into a new regulatory structure.

The MPs' letter blamed the failures in current regulation at the door of a "too elastic" public interest definition (an unworthy thought, but might this be a reference to their expenses scandal?). The great merit, they argue, of statute is that it can set "a single standard for assessing the public interest." Oh no it can't. A cursory acquaintance with the case law around the Human Rights Act and the PCC's Code of Practice shows how the line between privacy and the public interest can be drawn only through case-by-case rulings within a broad set of principles.

Leveson appears on course to entrench the gulf between regulated and unregulated media. No system of regulation will survive if the gulf goes too deep - and statute will drive it very deep indeed. So, what is to be done? We could do worse than adopt the American example of no regulation at all. US democracy has benefited from its constitutional protection of free speech. Or, we can recast regulation as a seal of good housekeeping, to be emblazoned on a publication's front or home page. In an age of information overload, when everyone needs help to distinguish between bilge and good journalism, this should be both ethically desirable and commercially attractive, a permanent magnet to those publications beyond the regulatory Pale.

It is not a perfect answer, because there is none. It would be untidy. It couldn't work unless it were voluntary; online is the enemy of compulsion. But, it's better than chucking an ancient English liberty over the cliff on the back of unworkable state regulation.