In February the “Media Regulation Roundtable” of academics, journalists, lawyers and others brought together under the auspices of the Reuters Institute for the Study of Journalism and the Media Standards Trust published a proposal for a new system of media regulation.
This was widely discussed at the time (see our post by Martin Moore). After further discussion and consultation the Roundtable presented a revised, final, proposal to the Leveson Inquiry in June 2012. The draft of the proposal was prepared by Hugh Tomlinson QC, who is giving evidence about it to the Leveson Inquiry on tomorrow, 13 July 2012.
The Roundtable proposal describes its proposed new system as having two objectives:
- To promote and protect the right of the media to publish information on public interest matters and the right of the public to receive it by promoting and protecting public interest journalism in all its forms and by protecting and encouraging high standards of ethical and responsible journalism.
- To protect the privacy and reputational rights of individuals and the right of the public to receive accurate information by providing a mechanism for the swift and cost effective resolution of disputes involving the media, thus providing greatly enhanced rights of access to justice for both the general public and the media whilst reducing the unacceptably high costs to both claimants and defendants of defamation or privacy related litigation.
At the centre of the proposed new system would be a new Media Standards Authority (“MSA”) which would have a number of key elements:
- The MSA would be established, by enabling legislation, as entirely independent of both government and the media – although its governing council would include a minority of former editors and some working journalists;
- The enabling legislation which established the MSA would contain a guarantee that the authority would itself be independent as well as, for the first time, guarantees of media freedom and independence.
- Media participation in the MSA would be voluntary but there would be substantial incentives for those who become participants; the most important of these would be an adjudication scheme for complaints which anyone wishing to bring legal proceedings against a participant would have to use before going to Court. In addition there would be enhanced defences in any legal proceedings pursued after the MSA system had been used and additional remedies and rights against non-participants including a statutory right of reply and correction.
- Although established by enabling legislation the MSA would not have the power to impose statutory sanctions on the media. Sanctions would be imposed under the terms of a 5 year “rolling contract” which participants would be required to enter into with the MSA.
- The MSA would regulate the participants – it would draw up a Code of Media Ethics and Responsibility (“the MSA Code”) and would receive regular reports and carry out audits to ensure that participants were complying. The MSA Code would be designed to provide a set of clear principles for ethical journalism and media practices, with specific examples and clear guidance adapted to the developing needs of the modern media.
- The MSA would have investigatory powers (deriving from the contract of participation). Participants who were found to have breached the MSA Code would be subject to directions and sanctions, including increased subscriptions where there were repeat breaches of the Code and, in the most serious cases, fines.
- The MSA Code would require prior notification in ordinary circumstances where the media was intending to infringe Article 8 rights. When approached by a member of the public, the MSA would be able to issue “desist notices” on an advisory basis to both to participants and to other publishers where journalists or “paparazzi” photographers were harassing an individual or threatening to infringe their Article 8 rights.
- The MSA would provide pre-publication advice and assistance – both to participants and to complainants. If a complaint was made about a threatened publication which it was claimed would constitute an invasion of privacy, the MSA would require a participant to state whether it was going to rely on a public interest defence and to demonstrate that it had used proper procedures to assess public interest. If there was publication and no such defence was in fact relied on, the participant could be sanctioned by the MSA.
- The MSA would mediate and determine disputes between the public and participants and would have the power to order the publication of fair and accurate summaries of its rulings and corrections. In appropriate cases it could also order the payment of compensation. The MSA would also publish recommendations in order to encourage continued adherence to the MSA Code.
- The MSA would be a public body and its actions in relation to complainants and participants would be subject to judicial review by the High Court (although, as a specialist regulator, it would be given a wide “margin of appreciation”).
- The medium term aim could be for the MSA to form part of a comprehensive system for regulation of all types of media – a “second tier” in between the “first tier” of strict regulation of those who use public resources (along the lines of the present Ofcom system) and a “third tier” subject only to “regulation” by the criminal laws against offensive speech, incitement of violence and so on.
Full details can be found in this document Future Regulation of the Media Final Proposal [pdf]