Press Regulation Explained: Should We be Concerned?

This week a decision has finally been made on how to implement the recommendations of Leveson Inquiry in to press standards. There has been much debate about what form of regulation is acceptable and what form it should take. This has generated considerable confusion about the whole topic. In a somewhat longer than usual piece, LawScape will now attempt to set out why regulation has been demanded, what was proposed, what has been accepted and whether we need to be concerned about it.

Why is Regulation Necessary?

The Leveson Inquiry (‘the Inquiry) into press standards was set up following the large scale wrongdoing of sections of the national newspapers. This included phone hacking and treatment of certain individuals in wildly unacceptable ways. The Inquiry found that parts of the press had ‘wreaked havoc with the lives of innocent people’ and that change was therefore necessary. The Inquiry recognised that much of the behaviour was criminal, but found that often this behaviour was undetectable and therefore prosecutions alone are simply not the answer. The Inquiry concluded a new regulatory regime is necessary in view of all press failures and the failure of the current regulator, the Press Complaints Commission.

What Did the Inquiry Recommend?

The Inquiry recommended the establishment of a new body to regulate the press. The Inquiry said the press could set up its own body as long as it meets certain standards.  This self-regulatory body would have to have an ‘Independent Board’ (so that it could not be influenced by governments or the press). Members of this Board would, among other things, have to be chosen by a fair and open process and would not be allowed to be a serving editor of a paper or a serving politician. The Board would have to be made up of a majority of individuals who are independent of the press.

Members of the Board would be appointed by an appointment panel. Members of the appointment panel would be appointed in an independent, fair and open way. The appointment panel would contain a substantial majority of members who are independent of the press and could include no more than one current editor.

This self-regulatory body would need to be validated by another body; this body would oversee the self-regulatory body to ensure it is operating correctly. The Inquiry suggested this body could be Ofcom, or, alternatively, another body.

The self-regulatory body would produce a standards code (through a ‘Code Committee’) which members would be expected to follow. The body could hear complaints about breaches of the code and would have the power to order apologies and fines of up to £1 million.

The Board would also provide an arbitration process where legal proceedings are likely so that potential claims might be settled before proceeding to court.

Press publications would not be required to sign up to the new regulatory regime, however incentives would be provided for those that do. For example, the normal rule in legal proceedings that the loser pays the winner’s costs could be reversed, so that for those publications who have not signed up to the new regime they would have to pay the other side’s legal costs even if they win. The rationale is that legal action could have been avoided had the publication been part of the regime and a complaint or arbitration been possible.

All of these procedures would be laid down in statute. Therefore an Act of Parliament would allow the creation of the body and could provide powers for it, but would not directly set it up or direct what the press could or could not do.

The Inquiry’s recommendations can be found in the Inquiry’s Executive Summary.

What Has Been Agreed?

The Inquiry’s report was largely received well. However, considerable concern was expressed about a statute being used to lay the foundation for a new body. Arguments were made that a free press holds governments to account and that to allow government to lay down a law affecting the press could threaten the freedom of the press to hold governments to account.

In response, the government has decided that a new body will be catered for by a royal charter, not a statute. Royal charters are normally used to establish bodies such as universities and charities.

The new Royal Charter (‘the Charter’) provides that there will be a ‘Recognition Panel’ which will have the power to recognise a new self-regulatory body. The Charter does not, therefore, follow the recommendation of the Inquiry to use Ofcom as the body which can oversee a new self-regulatory body. The Recognition Panel will have a board which shall conduct the business of the Recognition Panel.  To ensure independence from governments and the press, members of the Board will, amongst other things, not be allowed to be or have been an editor, or be a politician.

Members of the Board will be appointed by an ‘Appointments Committee’. Members of the Appointments Committee can, amongst other things, not be an editor or a politician.

The new self-regulatory body (the ‘Regulator’) itself will also have a board. The Board will comprise a majority of people who are independent of the press and, to ensure independence, will not include any serving editors or politicians.

Members of the Board of the Regulator will be appointed by an appointment panel. This appointment panel will have a majority of members who are independent of the press and will be independent of governments, but may include one current editor.

The new Regulator will produce a standards code (using a ‘Code Committee’) which members of Regulator will be expected to follow. The Regulator will be able to hear complaints about breaches of the code and will have the power to order apologies and fines of up to £1 million.

The Regulator will also provide an arbitration process where legal proceedings are likely so that potential claims might be settled before proceeding to court.

Press publications will not be required to sign up to the new regulatory regime, however incentives will be provided for those that do. Statute will be used for this limited purpose and is likely to provide that those publications which do not sign up to the new Regulator will face larger costs and damages in future legal action.

Finally, statute will also be used to ensure that the Charter cannot be easily changed. Law will provide that the Charter can only be altered if there is a two thirds majority in each of the Houses of Parliament

The draft Charter can be read here.

Discussion

Despite the move away from a statutory foundation for the new regulator there has still been a great deal of criticism of the new Charter. Some politicians and journalists still contend that a royal charter potentially affects a free press as it is still laid down by the government, even if it is not a statute. So do the press need to be concerned? Indeed, does the public need to be concerned? For if the freedom of the press is being threatened then we should all be concerned as they hold our organs of power to account.

The answer, for me at least, is the press and the public do not need to be concerned. Even if statute was to be used there is no need for concern. What is being proposed, whether it is in statute or a royal charter, is not regulation of what the press can or cannot do. It is quite simply establishing a framework within which the press can regulate itself in an independent way.  Suggestions that the proposals regulate what the press can do or provide discretion for this type of regulation are, quite frankly, misleading. A statute or royal charter setting up this framework poses no risk to the free press at all. It poses merely the same risk as the risk of government deciding tomorrow that it will pass law determining exactly what can or cannot be published by the press. A statute or royal charter of the nature proposed takes us no where nearer to press restrictions than we are currently and is not the start of a slippery slope to press regulation. It is merely a framework to allow the press to regulate itself and nothing more.

In addition, suggestions that the proposals in some way cross a line previously not crossed are also false. The reality is this country already regulates what the press can say by statute. The Human Rights Act 1998 incorporates Article 10 of the European Convention on Human Rights which limits what the press can say. While Article 10(1) sets out the right to free speech Article 10(2) sets out the restrictions on free speech (and therefore the free press). Article 10(2) says that free speech may be restricted, as necessary in a democratic society, for purposes including national security, public safety, the prevention of disorder or crime, the protection of health or morals, the protection of the reputation or rights of others and the preventing the disclosure of information received in confidence.

It is clear then that as the proposals seek to go no further than we already have the press and the public should not be concerned with what is being proposed. The free press is not being endangered.

One interesting point, however, is the apparent protection of the Charter by requiring a two thirds majority vote in each of the Houses of Parliament to alter the Charter. This measure is largely ineffective. Such is the nature of parliamentary law that it is very difficult to bind future governments and parliaments. It would be perfectly possible, for example, to remove the requirement to have a two thirds majority vote if a parliamentary majority (i.e. 51%) voted to remove it. Moreover a future parliament could simply pass a law that operates completely oppositely to the two thirds majority vote and then our courts would treat that original requirement as repealed (revoked) by implication, under the doctrine of ‘implied repeal’. The requirement for a two thirds majority vote does not, therefore, legally protect the Charter from change at all.

In conclusion then, to answer the question asked in the title to this piece, the answer is we should not, and nor should the press, feel concerned about this intended press regulation.

What are your thoughts on the intended regulation? Do you think it should be of concern to us?

Finally, do remember that LawScape now features a glossary of terms, which may aid understanding of this article.