After eight months of hearings, 337 live witnesses and thousands of pages of written evidence and submissions, Lord Justice Leveson has delivered his much anticipated report on the culture, practices and ethics of the press. As expected, the Leveson Report contains damning criticisms of the press and the failure of the current system of self-regulation.
The most keenly awaited aspect of the Report, however, is not the analysis of past wrongdoing – now well documented and widely recognised – but the judge’s recommendations for the future of press regulation in the UK. In this regard, the Report sets out bold proposals for a new model of self-regulation based around an “independent regulatory body…established and organized by the industry” but subject to periodic review by an independent “recognition body”. The recognition body would be charged with certifying whether the regulator had fulfilled certain “legitimate requirements” enshrined in an Act of Parliament, but would play no role in regulating individual newspapers or publishers. Membership of the new regulator would be voluntary, although participation would be heavily incentivized by various benefits and backed up by the prospect of direct statutory regulation by a “backstop regulator” if the new system fails to garner the support of the entire industry.
The failure of Press Complaints Commission
As expected, the Report excoriates the Press Complaints Commission which “lacks independence”, has “numerous structural deficiencies” and is “not actually a regulator at all”. These criticisms are no surprise – the Prime Minister has previously criticized the PCC as “ineffective and lacking in rigour”, and the body is currently winding down in preparation for its impending abolition and replacement.
A new independent regulatory body
In place of the PCC the Report recommends that the press should establish a new “independent regulatory body”. The new body would be expected to comply with certain “legitimate requirements” prescribed by statute. Those requirements, which are set out in detail in the Report, relate to the independence, structure, powers and functioning of the new body.
The Report states that membership of the regulatory body should be open to all publishers on fair, reasonable and non-discriminatory terms. A newspaper’s refusal to subscribe to the new regulator, however, would lead to certain disadvantages – in particular the likelihood of adverse costs awards in civil litigation and the possibility of direct regulation by a statutory regulator such as Ofcom.
Overview – Functions and structure
- The Reports recommends that any new independent regulatory body should:
- promulgate a Code of journalistic standards;
- hear complaints against its members regarding alleged breaches of those standards;
- order appropriate redress while encouraging individual newspapers to embrace a more rigorous process for dealing with complaints internally;
- play an active role in promoting high standards, including having the power to investigate “serious or systemic breaches” and impose appropriate sanctions;
- provide a fair, quick and inexpensive arbitration service to deal with any civil law claims based upon its members’ publications.
- The new body would be headed by an independent Board. The Board should comprise a majority of individuals who are independent of the press, although it must include a “sufficient number of people with experience of the industry who may include former editors and senior or academic journalists”. Crucially, it must not include any serving editor or member of the House of Commons or Government.
- The regulator would include a Code Committee tasked with making recommendations on the content of the Code of standards. The Code Committee could include serving editors; however ultimate responsibility for the content and promulgation of the Code would reside with the Board itself.
- The body would issue guidance on the interpretation of the public interest. The Report also suggests giving consideration to “a purely voluntary pre-publication advice service to editors who want support on how the public interest might be interpreted in a specific case before a decision is reached on publication”. This would operate “without notice to the subject of the story”.
- The Board would have power to hear and decide on complaints about breaches of the standards Code by subscribers to the new body. The Board would be able to hear complaints from:
- an individual personally and directly affected by the alleged breach;
- a representative group affected by the alleged breach; and
- a third party seeking to ensure accuracy of published information.
- The Board would have power to impose appropriate remedial measures, including powers to:
- direct the nature, extent and placement of apologies and corrections;
- impose appropriate and proportionate sanctions (including financial sanctions up to 1% of turnover, with a maximum of £1m) on any member found to be responsible for serious or systemic breaches of the standards code or governance requirements.
- Serving editors would not be permitted to sit on any Committee advising the Board on complaints. Any such Committee must have a majority of people who are independent of the press.
- The Board would have power to investigate matters of its own initiative. The Report recommends the establishment of a whistleblowing helpline for journalists who are concerned about potential breaches of the new Code of standards.
- The Report recognises that in order to persuade publishers to sign up to the new regulatory body “convincing incentives are required”. To this end, the Report recommends that the new regulator should operate an arbitration service in relation to civil legal claims against subscribers:
- Participation in the arbitration service would be a condition of membership to the new body.
- The arbitration service should be staffed by retired judges or senior lawyers with specialist knowledge of media law.
- Arbitrations would operate on an inquisitorial model and the process would be free for complainants to use. Frivolous or vexatious claims would be struck out at an early stage.
- If a publisher declines to participate in the new regulatory body then the courts would be permitted to deprive the publisher of its costs in any privacy, defamation or other media litigation involving the publisher, even if the publisher is successful in that litigation.
- The appointment of the Chair and members of the regulator must be independent. The Report recommends that this should be achieved through the establishment of an independent appointments panel.
- The appointment panel:
- should be appointed in an independent, fair and open way;
- should contain a substantial majority of members who are demonstrably independent of the press;
- should include at least one person with a current understanding and experience of the press;
- should include no more than one current editor.
Statutory underpinning: the “recognition body”
- In order to ensure that any new regulator is truly independent and capable of maintaining high standards of journalism, the Report recommends that the “the law must identify those legitimate requirements and provide a mechanism to recognise and certify that a new body meets them”.
- The “legitimate requirements” envisaged by the Report appear to be the structure, functions, powers and attributes set out above. Under the proposal, the recognition body would be required by statute to certify periodically whether the new regulator had complied with those requirements.
- The Report recommends that the broadcast regulator Ofcom should act as the recognition body. A “less attractive alternative” would be to appoint an independent “Recognition Commissioner” supported by officials at Ofcom.
- At the same time as enacting a law setting out the requirements to be met by an independent regulator, the law should also place an explicit duty on the Government to uphold and protect the freedom of the press.
A backstop regulator?
- Under the Leveson proposal, participation in the new regulator would be voluntary. In the event that a significant proportion of the industry are not prepared to adopt the new model of regulation, the Report raises the possibility of Ofcom operating as a ‘backstop regulator’. Lord Justice Leveson states that:
“I have made very clear that, by a very long way, my preferred solution, and hence my recommendation, is that the industry should come together to construct a system of independent regulation that could be recognised. If it does so, there will be no need for a backstop regulator.
However, if some or all of the industry were not prepared to adopt that position, I do not accept that they should expect the public to settle for less, much less escape standards regulation altogether. More significantly, if the possibility exists that a significant provider of press like services could avoid independent regulation without consequence, then there would simply be no incentive for an unwilling industry collectively to deliver it. My personal view, therefore, is that there may be a need for the realistic prospect of a backstop regulator being established…”
… my clear expectation is that Ofcom would be given this role: it is by far and away the best placed to do so.”
In addition to the proposals on press regulation, the Leveson Report makes several other recommendations of interest to media lawyers. In particular, it recommends that:
- The Civil Justice Council should consider increasing the level of damages in privacy, breach of confidence, and data protection cases.
- The Law Commission’s Report on Aggravated, Exemplary and Restitutionary Damages should be adopted insofar as it recommends that:
- aggravated damages should only be awarded to compensate for mental distress and should have no punitive element;
- exemplary damages should be retained (although re-titled as punitive damages)
- Exemplary damages should be available in actions for breach of privacy, breach of confidence and similar media torts, as well as for libel and slander.
Over the coming days and weeks Lord Justice Leveson’s Report will be analysed, dissected and debated by Parliamentarians – who must now decide whether to implement the proposals – and by the press, whose future regulation is now in the politicians’ hands. The Leveson proposals would offer the press one more opportunity to participate in a system of self-regulation, albeit one that must satisfy stringent conditions or face the prospect of direct statutory regulation. As with any regulatory system, the devil of any proposals is likely to lie in the detail. Crucially, Lord Justice Leveson has made it clear that the industry’s current proposals – spearheaded by Lord Hunt and Lord Black – fall well short of what is necessary to secure public confidence in self-regulation. However whether Parliament will implement the Report’s proposals, and whether the press will voluntarily subscribe to them, remains to be seen.
Edward Craven is a barrister at Matrix Chambers.