The Leveson Inquiry
Following much criticism of poor and over-aggressive newspaper journalism, including phone-hacking, most particularly by the Murdoch press, the Government set up the two stage Leveson Inquiry in what one commentator described as '[Prime Minister David Cameron's] panic-stricken bid to distance himself from the Murdoch papers he had so assiduously courted'. Lord Justice Leveson's resultant proposals for regulating the behaviour of the printed media (and associated websites) seemed to be a sensible attempt to focus regulation where it needed to be focussed, which was on news gathering by larger organisations. See Simon Carne's interesting blog on Leveson's proposals.
Lord Justice Leveson recognised that newspaper regulation has to walk a delicate line between self-regulation (so as to ensure zero government interference) and external oversight (so as to ensure that the self-regulation is effective). This means that the power of appointment to senior regulatory positions is very important. Leveson noted the existence of 'very powerful relationships' between politicians and newspaper proprietors which are 'more subtle' than 'explicit, covert deals' and added that there can be no doubt that there have been 'exchanges of influence' which raise 'legitimate questions'. 'Sometimes the very greatest power is exercised without having to ask ... Just as Mr Murdoch's editors knew the basic ground rules, so did politicians.'
The November 2012 Leveson Report accordingly seemed to require that the new regulatory body (or bodies) should not be led by individuals appointed by the media, whilst the oversight body (standing between the Government and the regulators, should certainly include individuals who were if necessary willing to 'make waves'. This oversight/verification body would need to have effective powers to investigate the overall performance of the regulatory bodies (though not their decisions on individual complaints) and if appropriate require changes to be made, even though it would then be criticised for interfering in the freedom of the press.
But L J Leveson was not working in isolation. He was informed by a team of six assessors appointed, from a variety of backgrounds including journalism. Leveson’s report records that: 'All the relevant Assessors have clearly advised that the system I am recommending, organised by the industry to objective standards, delivers the independent regulation which is essential; it safeguards press freedoms, will not chill investigative journalism that is in the public interest, and can command public confidence. It is their unanimous advice that it is in the interests of both the industry and the Government to accept and implement the recommendations to that end'.
Unfortunately the government's response, published in March 2013, initially appeared to impress no-one at all. The proposals were the result of a hasty deal, reached in the middle of the night, and had the following key features.
- The regulatory structure appeared quite clever, but further complicated the UK's already complex UK constitution. In short,
- there was to be at least one highly independent regulator:
- offering free arbitration to complainants,
- supervising only those companies who choose to be supervised,
- overseen by a body created by Royal Charter,
- whose terms cannot be altered without a two-thirds Parliamentary majority.
- (Click here for a more detailed discussion of regulatory independence.)
- The 'oversight' body could not oversee a regulator's decision making or make a regulator behave in a certain way. It could only test the regulator against the criteria laid down in the Royal Charter.
- Because politicians were understandably reluctant to require particular publishers to become subject to the new regime, they said that publishers could opt in and opt out as they wished. But then they twisted publishers' arms by adding that those who did not agree to be regulated would pay complainants' libel costs even if they win a case. They would also be subject to exemplary damages, if found guilty of bad behaviour.
- Note, however, that it could be very costly to be subject to the new regulatory regime which appeared to offer the magnet of free arbitration to frivolous and/or obsessive complainants, encouraged by 'ambulance-chasing' lawyers. And regulated companies would not be able to claim reimbursement of the cost of their 'defence' even if the arbitration panel were to rule entirely in their favour.
- A particular surprise was that politicians decided that 'relevant publishers', that ought to be regulated, should include 'a website containing news-related material (whether or not related to a newspaper or magazine)'. This is on the face of it quite a wide definition, and no doubt has libel and other lawyers rubbing their hands with glee
- More generally, where does the new regulatory regime leave publishers such as paper-based Private Eye and Internet-based Guido Fawkes and Huffington Post? These were not the sort of publisher in Lord Justice Leveson's cross-hairs, and yet they either have to submit to the new regime, and face lots of cost and complaints, or else risk exemplary damages.
- On the other hand, who could successfully sue an internet publisher who will in future ensure that their operations (such as their servers) are located outside the UK?
- Leveson's proposals introduced a distortion into the communications market as the unregulated (non-newspaper) sectors appeared to benefit (if that is the right word) from being able to behave less responsibly than their regulated competitors.
Rowena Collins Rice, Secretary to the Leveson Inquiry, said in April 2013 that "it was only the prospect of quick cross-party agreement that would make the [Leveson] recommendations implementable" but even this turned out to be insufficient as the press divided into two camps and the whole reform process stalled. As she commented five months later: "Look at the distribution of power that [this delay] speaks of - and the closer you get to a general election, the more potent a position the media is in".
The second stage of the Leveson Inquiry - into how law-breaking took hold in the press, and why the police failed to stop it - has yet to begin, although all the criminal trials have been completed including the Mazher Mahmood ('Fake Sheikh') prosecution.
Complainants' Legal Costs
The legislation imposing the tough costs regime on newspapers that do not join an approved regulator has been approved by Parliament but needs a Government Minister's approval before it comes into force. This has not yet been given.
(The relevant legislation is in Section 40 of the Crime and Courts Act)
The Royal Charter was approved in October 2013 and David Wolfe QC was in June 2014 made inaugural chairman of the Charter's Press Recognition Panel - i.e. the body that would approve any regulatory body established under the terms of the Charter. However, the vast majority of national newspapers had previously decided to set up their own self-regulatory body outside Charter's framework - see further below. The PRP is currently reviewing IMPRESS's application -see further below.
The ostensible reason for refusing to work within the Charter framework was that, despite the unlikelihood of the terms of the charter being amended by Parliament, there was a fear that it could happen following some sort of unforeseen crisis. (Though it is worth noting that Parliament can anyway always impose regulation if and when it wants to). But the detail of the arbitration and cost-sharing (summarised above) were also criticised. And press regulation through the use of an arcane medieval instrument, granted by the Queen through her Privy Council, also seemed to stick in the liberal editorial craw. It looked to many, nevertheless, as though the original newspaper bad boys were determined to avoid effective regulation and much preferred to recreate the old ineffective Press Complaints Commission under a new guise - see IPSO, below.
The Independent Monitor for the Press was recognised by the PRP in October 2016 even though its application was strongly opposed by many in the industry who in particular pointed out that IMPRESS is mainly funded by one wealthy individual - Max Mosley. IMPRESS can now start regulating smaller regional or online publishers who want to access the benefits and protections offered by the PRP recognition. In particular
- a publisher whose activities are subject to scrutiny by IMPRESS (i.e. by a PRP-recognised regulator) will not have to pay the costs of anyone who commences a privacy or defamation action against them, even if the publisher loses.
- And they are immune from exemplary damages in privacy and defamation cases.
- But other publishers cannot have their legal costs reimbursed, even if they lose. The logic here is that the plaintiff will have been denied access to the low cost arbitration that must be provided by a PRP recognised regulator.
The above benefits look very attractive but they have not yet tempted most major newspapers. The new (or re-badged) self-regulatory body - the Independent Press Standards Organisation - accordingly started work in September 2014 under Chairman Sir Alan Moses and Chief Exec Matt Tee. Most of the main national papers joined IPSO, apart from The Financial Times, The Guardian, and The Independent (and its sister paper The (London) Evening Standard). Private Eye has also chosen not to join IPSO - or any other regulator for that matter. IPSO is not recognised by the PRP, and its budget, rules, code, sanctions etc. are in turn controlled by the Regulatory Funding Company (RFC) which is in turn controlled by powerful press groups which used to control the discredited Press Complaints Commission. The first Chairman of the RFC, Paul Vickers, was previously Group Legal Director at Trinity Mirror whose flagship newspaper eventually admitted hacking telephones.
IPSO's procedures offer publishers several opportunities to intervene in its investigations. It is pretty clear, therefore, that IPSO is a long way from bring an independent regulator. Indeed, Sir Alan Moses told a Lords Select Committee that IPSO's rules on investigations 'require a large amount of red pencil'. But Paul Vickers told the same committee that this was not possible, at least until the system was shown not to be working well, and maybe not even then in view of the need to persuade all the publishers of the need for any change.
Latest Developments (or lack thereof)
Simon Carne summarised the position very neatly in September 2016:-
With the benefit of hindsight, it is starting to emerge that Leveson’s recommendation was implemented in a manner which left the press with a possible escape clause, which works in the following way. There is now an official recognition body, the PRP, created with cross-party agreement in Parliament, to determine whether a regulator meets the criteria for recognition. ... This is where the incentive mechanism should kick in to bring the press round. But when Parliament legislated for cost incentives, they built in a pre-condition that a recognised regulator had to be in place before the incentives came into effect. The giants of the press have seized on this aspect of the system and appear to be doing everything they can to prevent any regulator from gaining recognition...
Some 40 publications have applied to sign-up with an alternative regulator, IMPRESS. But the mainstream publishers and their representative in the form of News Media Association, the Professional Publisher’s Association, the Scottish Newspaper Society and Associated Newspapers, have attacked IMPRESS’s application on a succession of grounds, most of them – arguably all of them – quite spurious, at least in the eyes of this observer. If the counter-press succeeds, IMPRESS will not be recognised and the system of incentives and disincentives will come to nothing. ...
It is hard to resist the conclusion that their objections derive solely from a desire to delay – perhaps indefinitely – the recognition of any regulator, so as to avoid the financial disadvantages of their own choice to be regulated by a non-approved regulator.
It is important that we have a strong press, capable of speaking truth to power. But it is also important that the press has a strong regulator, capable of speaking truth back to publishers. A cross-party agreement in Parliament decided what such a regulator should look like, based on advice from the report of the Leveson Inquiry. Now we wait to see whether the press is so strong that it can prevent such a regulator ever seeing the light of day.
As noted above, IMPRESS was indeed recognised by the PRP a little later in 2016 but the Government showed no signs of implementing Section 40 which would introduce the requirement that the person who refused to go to arbitration, but insisted on going to Court in a dispute involving a newspaper, would have to pay both sides' costs. It is hard to see the harm in this legislation which would protect a small regional newspaper against a rich individual just as it would protect a less-well-off individual against a national newspaper with deep pockets.