The Leveson Inquiry has invited evidence and submissions from the public as well as from the Core participants. Although not reported widely in the media, last October the recently retired Lord Justice of Appeal, Sir Stephen Sedley, made his own submission to the Leveson Inquiry. This is available on the Leveson Inquiry website [pdf]. In this submission, Sir Stephen proposes his own model of statutory regulation of the media.
Sir Stephen argues that “Britain can boast some of the best investigative newspapers in the world” but that we also have “some of the most intrusive and foul-mouthed newspapers in the world“. He characterises the problem as being “how to keep the plums and curb the duff” – by the latter he means not the tasteless, trivial or debased – with which a free society has to live – but rather
“material which has no proper place in a society which respects truth and recognises the rule of law: material which illegitimately invades individual privacy, which depraves and corrupts or which is simply mendacious“.
He points out that while the first and second are illegal, or potentially so, simple lying “carries neither civil nor criminal penalties”.
“it is possible, at present, without fear of redress, to publish untruths which, although neither libellous nor invasive of privacy, can do serious personal or public harm”.
Despite this, he argues that the law’s abstension from the regulation of truth-telling is both principled and wholesome.
In terms of the potential remedies, Sir Stephen rejects the PCC, which he describes as being
“widely and rightly regarded as a body lacking both perceptible independence and any worthwhile disciplinary power“.
He goes on to make what he describes as “A modest proposal” for regulating the press. This involves
“the setting up of a statutory printed media regulator, governed by rules authorised by Parliament and designed to ensure a fair inquistorial, rather than adversarial, procedure. Such a procedure will place the responsibility for the initiation and conduct of an inquiry on the regulator rather than the complainant, but will afford the respondent a right to full notice and disclosure and a right to be heard at ever stage“
The standards to be applied could, he suggests, could perfectly well be those in the PCC’s Code.
The critical element of such a statutory regulator would be, he argues, its powers. He suggests that the primary tool should be an uncapped power to impose fines, tailored to the gravity of the offence. Such penalties should be open to appeal or review.
Sir Stephen argues that the subject-matter of a complaint would not have to be “pigeon-holed” into a legal category and there should be no trade off against civil rights of action.
As to who should be subject to regulation, he suggests that the daily printed media are the obvious candidates. The fact that international co-operation would be required for internet issues is not a reason for doing nothing now about the mainstream media.
In relation to the non-mainstream media, he suggests a possible solution would be to give the regulator a remit “which allows it to investigate any written publication within the United Kingdom“.
Finally, Sir Stephen rejects the idea of an enforceable right of reply suggesting that the solution is not problematical
“the press should remain free to refuse to publish a required correction or retraction following an adverse adjudicatiion, but if it does so any regulatory fine should rise steeply”.
This proposal is, he says in conclusion
“designed simply to suggest that there is now a powerful case for independent statutory regulation of the mainstream medial that regulation can solve a number of problems for which neither litigation nor self-regulation is proving adequate and that it can be done fairly and effectively without either licensing the press or giving the regulator a monopoly of the truth“
Although unattractive to the media, the virtues of this kind of straightforward model of statutory regulation are obvious. As the Leveson Inquiry moves to Module 4 and considers practical proposals for press regulation this is one which clearly deserves serious consideration.