Leveson’s vision for the future of press regulation
On 29 November 2012, Lord Justice Leveson's much awaited report "An Inquiry into the Culture, Practice and Ethics of the Press" was published. Leveson explains that his vision is for the press to achieve "voluntary independent self-regulation". He sets out his recommendations for future regulation, some of which have already proven controversial.
Contents of this article
- He recommends that all news and periodical publishers should be members of the new body. This should include online news publishers. Both Leveson, and many who gave evidence to him, are clear that the new system must include everyone. One of the biggest challenges is going to be how to deliver this goal (as discussed below);
- Members should have their own in-house complaint handling mechanism with a named senior individual within each title responsible for compliance and standards. Complainants should use this system in the first instance.
- These press titles would be members of and fund an independent self-regulatory body. This body would be appointed in accordance with statutory criteria by a process approved in advance by the "recognition body" (see below). This independent regulatory body would be responsible for enforcing a standards code. The standards code would address three main areas: Conduct; Respect for Privacy and Accuracy. The body would have three main functions:
- Complaints handling: The body would be able to take appropriate remedial action against titles for breaches of standards. It would direct the nature and extent and placement of apologies.
- Standards enforcement: In particular, the body would be able to undertake independent investigations of serious and systemic problems, with the ability to fine up to 1% of turnover capped at £1million.
- Arbitration service: As a condition of membership, members would agree to use the arbitration system which would be free for complainants. It would be chaired by retired judges/senior lawyers. Non-members of the independent regulatory body would potentially face disadvantageous costs awards and aggravated or exemplary damages in court where a claimant was deprived of the opportunity of a free arbitration.
- The independent regulatory body would be “recognised” by a Recognition Body. Leveson LJ suggests that this body should be Ofcom. It would be charged with the following roles:
- Approving independence of the appointment processes of the independent regulatory body;
- Checking the various bodies in the structure meet the statutory criteria (we do not yet have draft statutory criteria);
- Carrying out periodic and ad hoc reviews to ensure ongoing compliance with the statutory criteria.
Leveson suggests that the Recognition Body’s “decisions” could be subject to appeal and would undeniably be liable to judicial review, so that ultimately responsibility would sit with the courts.” 2 This Recognition Body would be created by statute. The statute would also enshrine a legal duty on the Government to protect freedom of the press.
- The independent regulatory body would be overseen by the Board of the Independent Regulatory Body. This body would appoint the Chair and other members of the Regulatory Body by a fair and open process. The majority of this board would be independent of the press. No serving editor, MP or Government member could sit on the board. The Board would be responsible for creating the standards code and would be advised on this by a Code Committee.
- In turn, the Board of the Independent Regulatory Body would be appointed by an Independent Appointments Panel. The Board should be appointed in an independent, fair and open way. A substantial number of the members of the Independent Appointments Panel must be demonstrably independent of the press. The Panel could include no more than one current editor. It could include distinguished public servants e.g. the Chair of the Judicial Appointments Commission.
From amongst the 2000 or so pages of the Leveson Report, one issue in particular has caused controversy and divided opinion, and even split the coalition government – namely, whether Lord Justice Leveson's proposed independent system of self-regulation should be underpinned by legislation. As David Cameron told Parliament on the day the Leveson Report was published, if Leveson's proposals are introduced, "we would have crossed the Rubicon of writing elements of press regulation into the law of the land".
The Culture Secretary, Maria Miller, also warned any mild underpinning legislation could open the door for more substantial legislation by future governments.
On the other hand, five of the six experts who worked with Lord Justice Leveson (including Elinor Goodman, the former Channel 4 political editor and George Jones, the former political editor of the Daily Telegraph) supported Leveson's recommendation that the independent regulatory body would need to be recognised by statute if it is to work.
So what exactly would Leveson's proposed legislation say? His Report does not specify. However, in broad terms:
- It is likely to set out the "legitimate requirements" for the new self-regulatory body. These statutory criteria are not specified, and this will no doubt be a concern to the press. The criteria are likely to include, for example, that the regulator's appointment processes should be independent, but they could go significantly further than this, for example by setting out the regulator's rules and procedures.
- It would establish a "Recognition Body" to check and certify that the regulator meets the statutory criteria set out for it. In line with Maria Miller’s concern, once a Recognition Body with powers to oversee the self-regulatory body has been established by statute, this provides opportunity for the Recognition Body's powers to be extended over time to cover more than mere validation.
- It is unclear from the proposals who would appoint the Independent Appointments Panel who in turn appoint the Chair and other members of the Independent Board. Would this be set out in statute?
- What happens if the Recognition Body finds breaches when carrying out its role? As mentioned above, Leveson envisages the Recognition Body making “decisions”. What decisions will it make and what will be the ramifications of a negative decision?
Lord Justice Leveson's preference is that the Recognition Body should be Ofcom. The Report also suggests that Ofcom could act as a backstop regulator if publishers fail to put in place and/or sign up to the new self-regulator.
The choice of Ofcom as the Recognition Body raises some significant concerns. Ofcom is a statutory regulator; it has an active role in content regulation for the communications industry. The press is unlikely to want a statutory regulator from a different, heavily-regulated area overseeing its own self-regulatory body. Also, Ofcom's Chair is appointed by the Government, and as such it is not independent of Government control.
In his report, Lord Justice Leveson takes a look at the systems of press regulation in other countries3. He pays particular attention to Ireland. The Irish Press Council and Ombudsman system was set up in 2007 as a direct response to the threat of legislation from the Irish Government. The Press Council has some statutory underpinning provided by the Defamation Act 2009. The Act sets out some fairly detailed requirements for the structure, coverage and operation of the Press Council. However, the code of practice and the complaints mechanism were left to the industry.
It is not a requirement for journals to participate. However, there is a clear incentive to do so, and all the major titles do participate: the Defamation Act 2009 provides a defence of “fair and reasonable publication” to a defamation action. In considering this defence, a court may take into account the extent to which the title adhered to the Code.
Interestingly, all UK titles that publish in Ireland are members of the Council. Leveson comments “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”. According to the current Press Ombudsman, UK titles account for 30% of the Council4.
The Irish system can be criticised for some of the same reasons as Leveson’s proposed system. Once the ability to legislate exists, the legislation can then be amended to increase the amount of State involvement. Whether that will happen remains to be seen, given that only three years have passed since the Irish legislation was enacted.
How then can regulation be avoided? The main reasons given for statutory underpinning in the Leveson report are:
- the widely recognised need to ensure all the main players take part in the system, and
- to give Ofcom (or another recognition body) the power to test and “approve” the funding agreement, governance structures and code of the new independent self-regulatory body against the statutory requirements.
On the first issue, the arbitration service suggested by Leveson could provide the real answer. As indicated above, Leveson believes it would be appropriate for a court to award aggravated or exemplary damages against an unsuccessful defendant, or to make an unfavourable costs award against a successful defendant, who has not only failed to demonstrate a proactive commitment to high journalistic standards but also deprived a complainant of access to a fast, fair and inexpensive arbitral mechanism by refusing to join the independent regulatory body. This costs and damages sanction could prove very helpful for incentivising membership on a non-statutory basis.
On the second issue, Ireland has demonstrated three years of their system working well, without the need for a body such as Ofcom overseeing their Press Council. There is hope then that effective self-regulation can exist without such a body. It is here that Lord Black’s “contract” system could prove key to finding an answer. The proposal is based on a voluntary model described by Lord Black as “independently led self regulation”. The self regulation body would be established under an Independent Trust Board with the power to impose fines for serious or systematic failures. There would be a contractual relationship between the regulated body and each of the publishers. Leveson is uncomfortable with this solution on the following basis:
- it does nothing to require publishers to sign up and the evidence before the Inquiry was that there is a substantial distance to go before all significant publishers could be persuaded to join.
- he found the proposal was structured entirely around the interests and rights of the press, with no explicit recognition of the rights of individuals: “an effective regulator should have the interests of those likely to be affected, alongside the interests of freedom of expression and the freedom of the press.”
If the press can find a way of meeting these concerns, ensuring membership by all the main players (as in Ireland) and also ensuring the rights of individuals are sufficiently represented within the body, Lord Black’s proposals could be a credible alternative to regulation underpinned by statute.
The Commons culture, media and sports committee has now launched a new inquiry into press regulation. This committee has called both David Cameron and Lord Justice Leveson to give evidence, as well as Lord Hunt (the Press Complaints Commission’s Chairman), Alan Rusbridger (editor of the Guardian) and representatives of the Hacked Off campaign.
In the meantime, the former Labour Lord Chancellor (Lord Falconer) is going to prepare a draft bill for Labour’s vision of press regulation.
While these developments unfold, the British press is under huge pressure to pull together and present a plausible alternative to Leveson’s proposals. If they fail to convince Parliament of a counterproposal, we can be pretty sure that the alternative will be a body underpinned by statute. We can also be pretty sure that the Bill will be the subject of months of debate. For that reason, we are unlikely to see a solution come into play until some time in 2014 (at the earliest).
We predict that the proposed scope of membership is going to be a huge issue. When it comes to setting out the framework for membership (whether in statute or in a code) there will be huge debate as to who falls within the new body’s remit. With the increasing convergence of media, particularly online, the issue is far from clear.
Leveson recognises this to a degree. He writes that any activities that are regulated by Ofcom under the Broadcasting Code, or by the Authority for Television on Demand (ATVOD) under the Audio Visual Media Services (AVMS) Directive, should not fall to be regulated under the new system. He points out that it will be very important for the boundaries between those systems and the new system to be looked at very carefully, and for the relevant regulators to work together to avoid conflict or gaps in coverage. Of online news, he says "it would clearly be appropriate that websites providing news coverage aimed substantially at a UK audience, with a substantial stable audience should be covered by any new regulatory system."5
Thrashing this out to provide a fair playing field for all media entities will be one of the key issues for the press and the Government to contend with during the course of 2013.
"The Commons culture, media and sports committee has now launched a new inquiry into press regulation. This committee has called both David Cameron and Lord Justice Leveson to give evidence, as well as Lord Hunt (the Press Complaints Commission’s Chairman), Alan Rusbridger (editor of the Guardian) and representatives of the Hacked Off campaign."