The view of the press as the ‘fourth estate’ is sometimes described by media historians as a myth created to legitimise the press in the nineteenth century. It has nonetheless had an enduring role in debates about press freedom. While the meaning of the term ‘fourth estate’ seems to have changed over the years, now it is commonly used to refer to the watchdog and checking roles of the press. In debates the term is normally used to argue against any regulations of the press. However, I argue the fourth estate/watchdog argument explains a problem with the current press in the phone hacking scandal. That view of the press might even point to the introduction of some controls on the media. Before getting to that argument, I first want to look at the way the fourth estate/watchdog was advanced at the recent Leveson Inquiry preliminary seminars. The seminars are not part of the formal record, but brought together a number of media professionals, experts and academics to help define the issue for the inquiry.

Most of those representing the press at the Leveson seminars made clear their opposition to a statutory regulator of the press – no surprise. What interested me were the justifications for press freedom. Alan Rusbridger, editor of the Guardian, told the seminar:

‘The press is sometimes called the fourth estate and that is probably too grandiose a concept for most journalists’ tastes but it does suggest an important, coherent and independent force in society. That apartness is crucial. The press doesn’t share the same aims as Government, the legislature, the executive, religion or commerce, it is or it should be an outside.’

He referred to the hacking scandal to illustrate the importance of press freedom – where the ‘normal checks and balances in civil society’ (the police, the Press Complaints Commission and Parliament) failed, the Guardian was able to step in and cover the abuses. Under this view, the press uses its resources to investigate and hold the powerful to account.

While not using the language of the ‘fourth estate’, many other participants at the seminar stressed the importance of press independence and the idea that the news media can act as a check on government. Paul Dacre, editor of the Daily Mail, said that most journalists work hard to ‘give voice to the voiceless and expose the misdeeds of the rich, the powerful and the pompous’ and that to over-regulate the press would put ‘democracy itself in peril.’ Former News of the World editor Phil Hall said that a government-appointed regulator would ‘inevitably increase the pressures on editors to give governments a wide berth, when surely their role is to question and hold to account our leaders and politicians.’

That approach to press freedom holds the press out as something separate to other speakers. It is an institution that requires freedom to perform a role for the public benefit. As Alan Rusbridger again said:

‘A free press is anyway not there for the benefit of a group called journalists. It’s primarily there for the benefit of ordinary citizens.’

Similarly, Trevor Kavanagh, associate editor of the Sun, told the seminar that ‘biggest loser of all, if we go further down the road of regulation, is the British public.’ By making these points, the rights being asserted are not ordinary free speech rights, but a separate right held by an institution.

Ronald Dworkin has warned that such a line of argument actually weakens the position of the press and provides a poor strategy when arguing against regulation. By premising press freedom on its contribution to the public benefit, it is something to be balanced with competing claims in the public interest. (see A Matter of Principle, p.387). According to Dworkin, the argument is one of policy rather than principle and is not a trump. By pursuing this line of argument, the press are opening themselves up to arguments that they should be subject to responsibilities. This is less problematic in the European setting where Article 10 of the ECHR allows for competing claims to be taken into account. Furthermore, even if the watchdog justification does open the door to some balancing, its advocates say it provides a strong argument that should outweigh the competing considerations.

The key argument underlining the watchdog function is that the press as an institution must be independent. While there is debate about whether this means independence from advertisers and other commercial pressures or from subsidies from moguls and oligarchs, most agree that it means independence from government. In the Leveson seminars, these arguments have been used to warn against further regulation of the press as a response to the hacking scandal. However, the importance of press independence underlines one of the central problems of the hacking scandal. The hacking of phones did not occur due to an absence of laws. Legislation was already in place prohibiting the practices of the private investigators. The question is why those laws were not enforced?

The answer to that is one of the matters Leveson will consider, but a lack of press independence and separation from government is one possible explanation. A part of the press became too close to politicians and the police. This gave the press a chance to lobby, apply pressure and thereby make any further investigation by politicians and the police into the hacking less likely. At the Leveson seminars, Damian Tambini (London School of Economics) and Ivor Gaber (City University) raised the possibility that journalists acted with impunity because they believed they would not have to face any consequences for the actions, as a result of their close relations with government. Tom Watson made an argument along similar lines in the House of Commons in 2010, when he said of the tabloid press:

‘They laugh at the law; they sneer at Parliament. They have the power to hurt us, and they do, with gusto and precision, with joy and criminality. Prime Ministers quail before them, and that is how they like it.’

It is that power to ‘hurt’ that is thought to give the press leverage, which discourages officials taking actions for their wrongdoings.

So the normal boundaries between press and politics were breached, but in this account it was the press that were able to bully or pressure government rather than vice versa. Should this be a concern from the perspective of press freedom? Could it be taken to mean that Murdoch reflects the ideal of press freedom, in so far as he can stand up to politicians? I would argue not and that such leverage over the political sphere is deeply problematic if we are concerned with the press as an independent check on government.

First, if the press are treated favourably by officials, then it may be asked what are the press doing in return and how does this affect the coverage of those officials? Secondly, if the press has strong lobbying power over the government and potentially has disproportionate influence on areas of policy, then it ceases to act as a check on government power. Just as Berlusconi’s media empire is not the most vigorous check on the Italian premier, News Corp’s credibility as a watchdog is jeopardised in a system where Rupert Murdoch is (to quote Lance Price) treated like a Cabinet member. Where the press has such political influence it becomes a participant in the political process with its own policy preferences to pursue – it is closer to a pressure group (whether for corporate or ideological goals) rather than institution with specific role in scrutinising the powerful.

An emphasis on the watchdog function and the independence of the press might point to some reforms or regulations that promote separation from government. I don’t think full separation is possible or desirable (and in my view that is a problem for the watchdog account). The press will always need to develop contacts with politicians for their stories and the politicians depend on the press to carry their messages. That is healthy, but some steps might be considered to draw a boundary.

First are transparency measures. There have been steps towards this with the Freedom of Information Act and government disclosure of information, but more could still be done. A more formal system of publishing information about lobbying, which the Coalition has promised, would shed more light on the influence of the media on policy making. This would cover those instances where a newspaper proprietor or editor speaks with a minister to discuss policy. The disclosure obligations need not be limited to politicians. For example, George Monbiot recently proposed that journalists disclose their sources of income on a on a register.  There are, however, shortcomings to disclosure strategies. Much communication between politicians would still take place off the radar, such as off the record briefings between a politicians and journalists.

Second is to focus on the ‘revolving door’, in which former officials go on to work for the media and those in the media go on to work in government. Just as former ministers are given a cooling off period before they can take up jobs that involve lobbying, a cooling off period could be imposed before former officials can work in the media and media professionals work in government. That might curtail the potential conflicts of interest that can arise if officials or journalists cosy up to one another to secure future employment. This strategy raises problems of its own. There are some jobs in government for which journalists are thought to be well qualified, such as in press relations. Furthermore, would such a prohibition stop a politician writing for a newspaper? If so, then the rule would be overly restrictive and might stop some important communications from politicians. Others might think they do too little and only curtail one type of connection between media and the press.

A third area concerns the power of the press. Arguments for the press as an institutional check on government suggest the need for a strong media that is not intimidated by the government and is well resourced. On this view, the concentration of the press is not a bad thing if it gives the newspaper a strong base from which to perform its function. There is, however, a need to ensure that there is a multiplicity of voices in the media and competition between media outlets. That way, it is hoped that the different newspapers will provide a check on one another, a point that Rusbridger mentioned (although the track record of newspapers actually doing this is questionable). More importantly, more diverse ownership would also limit the power (actual or perceived) of any media company and possibly reduce its leverage over politicians. The questions about media ownership have a role to play in separating the press and politicians.

The watchdog argument for press freedom has a long history. Personally, I think it is just one argument among several and need not dominate the discussion. However, if the argument is to be taken seriously (as many editors seem to wish), then we should follow its logic and think about ways to secure the independence of the press and keep it separate from government. That may not point to an absence of regulation.

Jacob Rowbottom will be taking up a fellowship at University College, Oxford in the new year.