Leveson's vision of a regulated press

Introduction

• Lord Justice Leveson has now reported following his 16 month Inquiry into the press.  His report runs to some 2000 pages.  The question of what changes result is essentially a political matter.  First indications are that there will be a parliamentary majority for statutory underpinning of a new regulatory system. Despite his reservations, the Prime Minister has ordered that a Bill be prepared to implement the Leveson proposals.  A lot of political skirmishing lies ahead.
• A new form of press regulation is inevitable. The consensus of the witnesses to appear before Leveson was that the PCC was completely washed up.  But is Leveson really in tune with the workings of the press? How much power is he willing to give to legislators over the press? Do his proposals threaten to undermine investigative journalism? Is he imposing excessive burdens on the press? Can there be a level playing field between a regulated press and unregulated social media and will there be only one winner?

Background to the Leveson Inquiry

Investigations by the Guardian of 9 July 2009 followed by a similar article in the New York Times of 1 September 2010 revealed that phone hacking at the News of the World was on an almost industrial scale, notwithstanding the half-hearted and – in view of what followed involving small matter of a £40 million police inquiry- a remarkably cursory original police investigation.  Following the revelation that the telephone of a missing murder victim, Milly Dowler, had been hacked in to by the newspaper, the Prime Minister, David Cameron, in July 2011 announced that there would be a Judicial Inquiry into the Culture, Practice and Ethics of the Press.  It is the seventh time in seventy years that there has been an enquiry into the practices of the Press in the United Kingdom.  Pressure has now built up to produce an effective result which was not the consequence of the six previous efforts.  The Inquiry was divided into two parts.  Leveson has reported on the first part.  However Part Two of the Inquiry has been consigned to the long grass until the conclusion of criminal proceedings.  It is open to question whether part two will ever take place, although there was some suggestion by Leveson that it would.

The evidence started on 24 November 2011 and formally ended on 24 July 2012 by which time evidence had been taken from some 337 witnesses in person or by written submissions from 300 individuals or organisations.  The Inquiry is reckoned to have cost somewhere in the region of £5.6m, a relatively modest cost compared to the Police Inquiries into hacking-related criminality and to the Bloody Sunday Inquiry which cost £155,628,791 of which the legal profession received no less than £67,603,621.

Throughout the Inquiry, many have felt that Leveson was harboured a general distaste for the tabloid press: a view that was supported by the hundred page excoriation of the popular press contained in the notices of potential criticisms sent to the press prior to the publication of his report, the remarks made in his report that the press had ‘wreaked havoc with the lives of innocent people; there was outrageous behaviour by newspapers, newspapers behaved as if the code of conduct did not exist’, and ‘significant and reckless disregard for accuracy’, plus the fact that the police and politicians emerged from his report comparatively (and surprisingly) unscathed.

Leveson’s primary recommendations were:

• a new and independent regulatory body which should have no serving editor or member of the House of Commons or Government on the board, but should contain people with experience of the industry;
• this would be a self-regulating regime which would set a Standards Code which would recognise freedom of speech and the importance of issues of public interest which he perceived to include such matters as the exposing of crime or serious impropriety or the public being seriously misled.  However, the other side of the coin was that the Standards Code must relate to the way that the press treated people particularly in relation to an appropriate respect for their privacy where there was no public interest justification for breaching that privacy and equally for accuracy and avoiding of any misrepresentation of the facts.
• Leveson envisages legislation to underpin the system of independent self-regulation.  His thinking is that such legislation is necessary to establish the parameters of the self-regulating body and to facilitate the recognition of that body in the legal process so that exemplary damages and costs could be awarded against the press if they fail to comply with the requirements of the regulatory board.  He envisaged that the self-regulatory body would be benchmarked by the Office of Communications (the body that regulates various forms of media such as television (Ofcom) in a sense of its composition and criteria being verified so that its procedures could be recognised by the courts.  The problems with handing out unnecessary powers is that sooner or later someone abuses them.  Many still remember the 81 year old arrested at the Labour party conference under the Terrorism Act for shouting “Bollocks” at Tony Blair.
• Leveson does also envisage a failsafe option that whereby if this regulatory system failed, legislation would be brought in to bring the regulatory body under the general umbrella of Ofcom.
• The regulatory body should have power to direct appropriate remedial action for breach of the press standards it had established and powers to direct the nature and placement of apologies and corrections.
• The regulatory body should also have powers to impose appropriate sanctions which could include powers to impose financial penalties of up to 1% of turnover with a maximum penalty of £1m for serious of systemic breaches.
• The body would provide arbitration services for disputes where the costs would be borne by the parties subscribing to the regulatory board. It should be fair, quick and inexpensive.  It should be inquisitorial and free for complainants to use.  Clearly, it would be important to ensure that there was an appropriate filtering process for complaints and that complainants focus on their actual complaint rather than being able to raise issues of corporate governance that the Leveson report seems to bring into play, which would make the process more costly and slow.  There will doubtless be a widespread welcome for swift and cheap resolution of complaints.
• Among other things, Leveson recommends that the body should provide guidance on the interpretation of the public interest justifying publication (including potentially requiring journalists to keep a record of the factors weighed up in relation to publication). He also recommended “an advisory service to editors in relation to considerations of the public interest in taking particular actions”.  This latter recommendation in particular may result in a significant change in press regulation as it is likely that running stories past such an advisory service would quickly become a requirement via the backdoor (on the basis that publishers that failed to do so would likely face criticism in subsequent litigation), limiting editors’ ability to assess the public interest in a story for themselves.
• Leveson proposed that the protections that the media enjoy under Section 32 Data Protection Act in regard to data which is held for journalistic purposes should only apply where the processing of data is actually necessary for publication and not simply where it was undertaken with a view to publication.  Putting to one side the point that it is difficult to know whether data is “necessary for publication” until one has seen it (hence the justification for the previous wording of “view to publication”), this proposal again appears to show that Leveson wants external supervision of editorial decisions.  In doing so he is in the opposite direction of travel from UK and European courts. He would also want Section 32 to be amended to that there must be a reasonable belief on the part of the journalist who was processing the information that the material would be in the public interest with their being no weighting in favour of freedom of speech. He appears to favour that it should be objectively established that the likely interference with privacy would be outweighed by the public interest in publication.  This proposal does seem to call into question the judge’s understanding of how papers work. Investigative journalists need background material to be able to carry out their investigations effectively and they may need it on a moment’s notice to deal with unexpected world events.  The Leveson proposals suggest they may be spending increasing amounts of time with compliance  officers. As the PM noted, this could have implications for investigative journalism. It could also produce a significant raft of litigation where the media would face a considerable burden of proof.
• Leveson envisages newspapers having compliance officers and readers being able to find information in newspapers as to the compliance procedures.  That is a development which could notably add to the burdens of press organisations and lead to ever tighter regulation.
• Leveson wants the Civil Justice Council to consider the level of damages in libel and privacy claims. Leveson envisages widening the criteria for the aware of exemplary damages which would take account of the extent of internal good governance and compliance with the code of standards by the press.  One’s concern here would be the underlying cost attached to such requirements and obligations and the scope for litigation.  Damages have, from time to time, been reviewed by the courts under a system that appears to work reasonably well.  There are parts of the Leveson Report which do appear to seek to fix everything and may suffer from the fact that Leveson’s background is not in media law.
• Leveson makes criticism of the over-close relationship between the police and the press.  He makes a number of practical recommendations to what is termed “revolving doors” suggesting that police officers should not take up positions in the press within 12 months of their leaving the police force and that there should be regulations and transparency as to dealings between the press and the police, including matters such as entertainment.
• There are a number of detailed recommendations and criticisms relating to the relationship between the press and politicians.  Here, Leveson’s ecommendations are less specific, he would wish political figures to reflect constructively on such relationships and for there to be greater transparency.
• Leveson proposes that the Information Commissioner should issue practical guidance in relation to data protection which would support the press in improving its standards and practice in handling personal information.
• Leveson is highly critical of the News of the World, for example, criticising the favourable treatment their staff received when they were imprisoned or dismissed as a result of their misbehaviour.  He also criticised the failure of management to deal appropriately with compliance issues at the News of the World.
• Leveson was highly critical of the Press Complaints Commission (PCC).  He noted that Cameron had described it as “ineffective and lacking in rigour” and that the leader of the opposition had called it “toothless poodle”.  Leveson noted that it was not a regulator at all but a complaints handling body, which was under-utilised and had insufficient resources.  He also criticised the fact that it had not monitored compliance with the PCC Code, instead he advocated the need for a genuinely independent and effective system of self-regulation.  He rejected an entirely voluntary scheme which had been advocated by former executives of the PCC based on a five-year binding contract.  He simply did not believe that would work.

The reaction of the Prime Minister to Leveson’s report

• Any change in the legal framework under which the press operates is a distinctly political matter. Initial reactions have shown that there are deep political divisions as to the extent to which and the manner in which the press should be regulated.  The Prime Minister (PM) proposes to hold cross-party talks to seek agreement as to how the Leveson proposals are to be agreed.
• The PM agrees with the concept of a new independent regulatory body, to be appointed so as to be independent of Parliament and the press, as proposed by Leveson.  A difference arises as to whether legislation is required to establish it.
• Broadly speaking, the PM accepts Leveson’s proposal that the new regulatory body should lay down a code of standards for the press, that it should run an arbitration service with a swift complaints handling procedure and that it should have power to demand suitably worded apologies and how they should be published and that the powers should in the last analysis be backed with the ability to levy fines of up to £1m.  Leveson also envisages an arbitration service which would be administered by the regulatory body which would be part of the legal system and would be a factor to be taken into account in litigation but that the cost of such arbitration would be borne by the press.
• Where the PM has his main disagreement with Leveson is the idea that press regulation should be made part of the law of the land.  That, he feels, is crossing the Rubicon.
• The PM’s concern is that talk of legislation to “provide the mechanism to recognise and certify a new regulatory body” would be in effect to give a vehicle for politicians to impose regulations and obligations on the press.
• The PM also differs over Leveson’s contention that legislation is necessary to implement his proposals over such matters as the award of costs or exemplary damages against the press, although he does not disagree in principle with the idea of such orders for costs or exemplary damages.  A Bill will nevertheless be prepared.  Initial government briefing suggests this will highlight the difficulties of what Leveson proposes.  The contrary view is that parliamentary mathematics suggest that there is a majority which will compel legislation to implement the Leveson proposals.
• The PM also is concerned about Leveson’s proposed changes to the protection of journalistic material which exists under Section 32 Data Protection Act and its effect on investigative journalism, particularly when one bears in mind how wide the definition of such data is.  The PM says that he is “instinctively concerned” about that proposal.

Conclusion

The report is impressive in its thoroughness, but its conclusions and indeed some of its findings are debatable.  The debate will now move into the political arena.  So far as one can judge, there appears to be a strong majority for a new and effective system of regulation.  There may be a majority for some sort of legislative framework for the regulatory body, but that will be a matter for negotiation and discussion with no political party wishing to be seen to be defending the press too strongly in the current climate in the United Kingdom.  The concept of the importance of freedom of speech and the dangers of starting to regulate the press seem, at the very least, to be counterbalanced by the general distaste for the misbehaviour on the part of a section of the tabloid press. The elephant-in-the-room, which Leveson has largely ignored, is how one equates a greater regulation of the press with an inability to provide any such comparable regulation for the social media.  An unequal playing field looks as if it is about to be created and the traditional press will be thereby weakened at the expense of the unregulated media. Leveson’s comments on the social media and internet account for only one of the 2000 pages.  He views the growth of the internet as irrelevant to most of the inquiry.