The politics of Leveson – where are we now?

What a script! Political in-fighting, revolts within parties, criminal behaviour, late night deals over pepperoni pizza and Haribo, washed down with political threats and a final dash of sexual intrigue. You could make it up, but you don’t need to; once again the great British press has kept you shocked, scandalised and entertained all at once but this time about its own inside dealings.

Leveson 2: The Empire Strikes Back is now in full swing. The initial and swift rejection of Ofcom as a recognition panel led to weeks of relative silence as the publishers and their editors tried to swing deals behind the scenes that would launch a regulator partway between the present PCC and the Leveson recommendations and probably (judging on past performance) picking up the worst of both.

With proposals for statutory underpinning finding little favour with the Conservative part of the coalition government and Labour and Lib-Dems unwilling to risk the press wrath by going it alone, a Royal Charter has become regulatory weapon of choice. This is surprising bearing in mind that Charters are controlled by the Privy Council (essentially the Government as the Queen is advised by her ministers) rather than an elected parliament but then these are strange times. Initially the Tory element of the government wanted a Royal Charter that was not really worth the upset it was bound to cause. It would not have satisfied those who want strong regulation, for the very good reason that it would not have offered any, and would not have satisfied those who didn’t want regulation for fear it might, not that this has prevented its supporters, some of the key national publishers from springing it as a last minute counter-attack against parliament’s all-party version.

It’s worth remembering there are three main groups in this debate. There are those (ac- tually a very small number and not really organised) who don’t believe in any form of regulation preferring instead a rumbumptious and irreverent press determined to prick the pomposities of politicians. That’s fine in its way, and several magazines and websites do it well but it is not the style of mainstream of news-led journalism that concerns most people as Leveson identified when he argued that internet bloggers and websites should be allowed a free hand:

The internet does not claim to operate by any particular ethical standards, still less high ones. Some have called it a ‘wild west’ but I would prefer to use the term ‘ethical vacuum’. This is not to say for one moment that everything on the internet is therefore unethical. That would be a gross mischaracterisation of the work of very many bloggers and websites which should rightly and fairly be characterised as valuable and professional. The point I am making is a more modest one, namely that the internet does not claim to operate by express ethical standards, so that bloggers and others may, if they choose, act with impunity. The press, on the other hand, does claim to operate by and adhere to an ethical code of conduct.” (Leveson 2012: 737-8).

This leads us to the second group, which tends to include all the publishers. These believe there should be some form of regulation but get very nervous when the system suggested is not completely or largely under their control – hence their last minute charter snub to democratic government.

Then there is the third group who believe there should be regulation, that it should be as light touch as possible whilst still having sufficient teeth to curb the worst excesses of the industry.

It is this third group that is by far the largest and is certainly the most numerous in parliament. For this reason we saw the fascinating developments in the final days before the Easter recess with the Lords amending any Bill they could in the run up to the end of the parliament to include reference to a regulator. This put the Government on the spot, un-willing to present Bills now amended in a way they couldn’t support for the entirely justified fear they would be passed. In the end the Government in a literal 11th hour meeting with the opposition to draw up a Royal Charter that no-one really welcomed but all could finally agree to, taking them into parliament united against a press, which, despite pressurising Letwin and Cameron to opt for a Charter, was furiously outraged that parliament had agreed to one of their own. Not to be outdone, the Press then also produced a charter and so, like buses, you wait months for a one to arrive and then two come along at once.

So what do we get from a Charter? There has been minimal coverage about parliament’s charter in much of the press with some being downright duplicitous about it. A Royal Charter is a way of making group of people a legal entity. The other way of incorporating groups is by statute. Companies are incorporated under the appropriate Act of Parliament, for instance, while most Universities are covered by a Royal Charter.

This Charter (which has a safety clause preventing government from changing its terms without a two-thirds majority in parliament) sets up a recognition panel whose job it is to approve any regulator seeking to protect press freedom and to uphold press standards whilst allowing its members to benefit from protection against the costs and exemplary damages outlined in section 29 of the Crime and Courts Bill now just waiting a date for royal Assent.

The Recognition Panel, which the Charter says must be independent of the press and politicians, can offer recognition to any regulator that:

  • Has an independent board with no serving editors or MPs and a majority independent of the press but including sufficient with experience (former editors or journalism academics)
  • Offers advice to the public;
  • Provides guidance on the public interest;
  • Establishes a whistleblowing hotline for journalists;
  • Power to hear complaints about breaches of the standards code free of charge from those directly affected or from third party complainants concerning accuracy or where there is a public interest in the board considering a complaint from a representative group;
  • Power to direct nature, extent and placement of corrections;
  • Power to investigate;
  • Power to impose sanctions including fines of up to 1% of turnover of max £1m and power to instruct correction or apology. No power to award compensation;
  • Provide inexpensive arbitral process for civil legal claims that is free for complainants to use. Each party should bear its own costs.Its members should have appropriate internal governance process including adequate and speedy complaints handling, and membership open to all publishers with the possibility of membership on different terms for different types of publisher.The regulator (nor the Recognition Panel) would NOT have the power to prevent publication at any time.
  • Any recognised regulator should have a standards code that must take into account:
  • Freedom of speech;
  • Interests of the public;
  • confidential sources of information and rights of individuals;
  • Conduct, especially of other people in process of obtaining material;
  • Respect for privacy unless public interest defence;
  • Accuracy and need to avoid misrepresentation.The Recognition panel will be bound to report regularly to Parliament and should particularly report if the regulator does not cover a significant section of the press. The clear implication being that if a regulator lost one of the nationals as a member, parliament might act.The key differences in the Publishers’ Charter is the level of control the publishers keep to veto members of the panel, making the arbitration system optional (although the Crime and Courts Bill requires one), the exclusion of journalists from the Code Committee and the exclusion of a whistleblowing hotline for journalists forced to behave unethically.

    So what would happen if there was no regulator? The Crime and Courts Bill, is presently going through parliament and has been finally agreed, and is waiting only for a date for royal assent. This will introduce a scheme of exemplary damages for “relevant publishers” who are not members of a recognised self-regulatory body.

    If the defendant was not a member of an approved regulator at the time when the claim was commenced the court must also award costs against the defendant unless the issues raised by the claim could not have been resolved by using the arbitration scheme of the approved regulator.

    There is much concern amongst bloggers and others about their risk of costs and exemplary damages under the Crime and Courts Bill. The Crime and Courts Bill does allow for costs and exemplary damages but it is important to get these in perspective as exemplary damages could only be applied if the defendant:

  • showed ‘a deliberate or reckless disregard of an outrageous nature for the claimant’s rights’;
  • the newspaper deserved to be punished;
  • and other remedies would not be adequate.This is a pretty high threshold. However, it is the costs aspect that most concerns small publishers. Bloggers and small scale websites may well be able to claim it would unreasonable to expect them to join a regulator, which gives some protection in the Bill and

they could quote Leveson in their defence:

In contrast, the internet does not function on this basis at all. People will not assume that what they read on the internet is trustworthy or that it carries any particular assurance or accuracy; it need be no more than one person’s view. There is none of the notional imprimatur or kitemark which comes from being the publisher of a respected broadsheet or, in its different style, an equally respected mass circulation tabloid. (Ibid. 736-737)

Costs can only be awarded under the Crime and Courts Bill if the defendant is a ‘relevant publisher’ and was not at the time a member of an approved regulator.

Groups exempt from being a relevant publisher include:

  • The BBC;
  • Sianel Pedwar Cymru;
  • Licensed broadcasters publishing news-related material; special interest titles such as those relating to a particular pastime, hobby, trade, business, industry or profession, that only contains news-related material on an incidental basis that is relevant to the main content of the title;
  • Scientific or academic journals;
  • Public bodies and charities;
  • Company news publications and book publishers.We are all poised now with bated breath to see what comes next. Which Charter will be signed off by the Queen; parliament’s representing the will of the electorate or the publishers’, representing the will of, well, the publishers? Will the publishers set up a regulator and apply for recognised status, and if so, under which Charter or will they drop any attempt at regulation and take their chances with the Crime and Courts Bill? Will the regional press or magazines split off and form their own regulator leaving the nationals to deal with their own demons? Since the Bill without a regulator risks the costs being levied against a publisher for any civil action my guess is that Lord Hunt will soon have a short but unenthusiastic queue outside the PCC HQ seeking to join a new regulator and we will eventually have a code and body to explain to our students.

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