In drafting his recommendations for reformed press regulation in the UK, Lord Justice Leveson has looked with evident interest at how things are done overseas. A chapter of his report considers ‘international comparators’ (Part K, Chap 5) and while none can provide an off-the-shelf blueprint for future regulation in the British context, elements of a variety of overseas models form key components of his proposals for a voluntary, independent, self-regulatory framework.
I should declare an interest here. My report Regulating the Press: A Comparative Study of International Press Councils was published by the Reuters Institute for the Study of Journalism and submitted as evidence to the Inquiry. I gave oral evidence on my report as the Inquiry hearings drew to a conclusion in July 2012 and was closely questioned by Lord Justice Leveson who draws on my findings in the Inquiry’s Report. My research was based on interviews I conducted with press council chairs and ombudsmen from a range of mature democracies. Each of the countries I explored has a ‘free press’ according to press freedom indices, recognises rights to freedom of expression as well as to privacy, shares a belief in the importance of press standards and accountability, and each has a press council. Yet despite these shared values and common beliefs, the approach to press regulation in each country is strikingly different.
Let’s first consider the models Lord Justice Leveson has not recommended. If press regulation is imagined as a spectrum (Chapter 4 of my report Regulating the Press: A Comparative Study of International Press Councils sets this out). At one end lies voluntary ‘self’ or ‘peer’ regulation, illustrated in Germany. Only publishers and journalists sit on the German Press Council board with no independent representatives. It is a pure form of self-regulation – of industry, by industry – and clearly not one to attract Lord Justice Leveson.
At the other end of the spectrum lies Denmark, where the regulation of print and broadcast journalists is mandatory. All publications circulated more than twice a year, and all broadcasters holding a Danish licence, are subject to compulsory Press Council regulation set out in the Danish Media Liability Act together with a right to reply. The Danish Press Council calls itself an ‘independent public tribunal’ and the code of rules on press ethics is the responsibility of the Press Council rather than statute. But the Press Council itself is a statutory body and, should a publisher fail to publish or broadcast a Press Council adjudication or correction when required, a fine or four month prison sentence can be imposed. This mandatory, co-regulatory framework was hotly tipped as a favourite in the run-up to the Inquiry Report’s publication but was not the model recommended.
Leveson’s proposals for voluntary, independent, self-regulation are set out in The Leveson Inquiry Report Volume 4 Part K Chapters 7 to 9 and summarised in Part L. As broad principles they share common ground with the recommendations for voluntary, incentivised, independent regulation set out in Chapter 7 of my report Regulating the Press: A Comparative Study of International Press Councils. They sit somewhere in the centre of this regulatory spectrum, in a space occupied by Sweden, Finland, Ireland and Australia. The recommendations he makes for new legislation, and for the proposed new regulatory body, can usefully be explored against the backdrop of regulation in these countries.
A dab of statute
Leveson makes three recommendations for new legislation the first of which is to articulate the protection of freedom of the press. Enshrining press freedom in law has a long history in Sweden where the first Freedom of the Press Act dated back to 1766 and the current Act contains a number of protections for journalists including protection of sources. Similarly in Finland the Exercise of Freedom of Expression in Mass Media Act [pdf] sets out to guarantee freedom of expression and to restrict interference with the activities of the media, while also setting out the responsibilities and liabilities of the responsible editors, publishers and broadcasters. Leveson may have felt comfortable with proposing a legislative approach to press freedom given that Finland adopts this approach while also regularly ranking at the top of press freedom indices (see the Reporters Without Borders Press Freedom Index). In the UK however any suggestion of introducing a connection between the press and the law raises significant debate.
The next two elements Leveson proposes for legislation are connected. These are to provide an independent process to recognise and periodically review the proposed new self-regulatory body, and to link the new system to legal benefits for members as strong incentives for signing up and for continuing active compliance.
Ireland seeks to achieve this through its 2009 Defamation Act [pdf] which recognises a number of public interest defences for publications seeking to argue that a statement was not defamatory, but rather was ‘fair and reasonable’ publication. One of these defences, which the court can take into account in defamation proceedings, is that publication was by a member of the Irish Press Council who adhered by its code and abided by its determinations (or adhered to equivalent standards which is a useful caveat for overseas providers). The Act also sets out the criteria for a body to be recognised as the Press Council, including independence and accountability. Importantly, statute does not establish the Press Council (as is the case in Denmark above), rather it establishes the criteria it must meet. Nor does statute make membership compulsory. It is the Irish Justice Minister who is tasked with deciding whether the Irish Press Council meets the requirements of independence and effectiveness, and the Minister can revoke that recognition if he or she decides the Press Council no longer complies with the criteria set out in the Act. Lord Justice Leveson noted with interest that “all UK titles that publish in Ireland are members of the Council; they do not appear to allow any principled objections to statutory underpinning of press self-regulation to get in the way of constructive and willing participation in this system” (The Leveson Inquiry Report Volume 4, p1713).
Lord Justice Leveson’s proposals are a variation on this theme. He proposes that the communications regulator Ofcom as the body suitable to fulfil the task of recognition. He may have felt this offered more independence than the ministerial responsibility at play in Ireland. However the very mention of Ofcom, a body with statutory powers, coupled with his recommendations for recognition in statute, provoked immediate resistance from the UK’s press. Leveson also takes a different approach to the Irish in relation to the nature of the statutory recognition he proposes. As discussed above, in Ireland a track record of voluntary, active regulatory compliance is linked to a public interest defence in defamation cases. In the Leveson proposals those who subscribe to the system are rewarded with access to a “quick, fair and inexpensive” arbitral system “incentivised by way of costs advantages” (The Leveson Inquiry Report Volume 4 p1769). A further reward would be the potential to avoid the significant court costs and exemplary damages that could be levied on publishers who chose to remain outside the regulatory system. Publishers would also be able to use membership as a way of demonstrating “compliance with data protection legislation and good practice.” (The Leveson Inquiry Report Volume 4 p1806).
Lara Fielden is a Visiting Fellow at the Reuters Institute for the Study of Journalism