Monday 3 December 2012

Guarding the guardians - the Leveson report and the Rubicon

Updated 5th December

Cameron makes the editors an offer they can't refuse!!  Culture Secretary chairs meeting with newspaper editors - Dept. of Culture, Media and Sport


Lord Justice Leveson recommended legislation to (a) place a duty on government to uphold and protect the freedom of the press;  and (b) to give recognition and certification powers to a Recognition Body (such as Ofcom).   

The Recognition Body would be responsible for the recognition of the Regulatory body and for its certification and the Recognition Body would have powers to review the regulator at specific intervals.   

The Regulatory Body itself would be set up by the press and membership would be voluntary but there would be powerful incentives to join.  Life outside the fold might prove to be very risky legally!   

Other bodies would also have responsibilities – in particular, the Information Commissioner in relation to Data Protection and the Independent Police Complaints Commission in relation to Police matters.  Various amendments to the Data Protection Act 1998 were suggested as well as amendments to the Police and Criminal Evidence Act 1984.

Leveson LJ claimed that this “is not and cannot reasonably or fairly be described as statutory regulation of the press.”   His scheme was for an independent regulator with statutory support.  Legislation would enshrine (for the first time) a legal duty on government to uphold the freedom of the press and would create an independent process to recognise the regulator so that the public could have confidence in the independence of the regulator and its efficacy.  (Food for thought: Is Press Freedom built into the European Convention on Human Rights Article 10?).  The Press would gain tangible benefits since those signed up to the regulator would be able to show that they acted in good faith according to a code of conduct based on the public interest.

Leveson LJ readily acknowledged the importance of a free press in a democracy but are his key recommendations a major step toward an unfree press?  

Much will depend on the role of Ministers in relation to the Recognition Body and, in turn, the precise powers given to the Recognition Body in relation to the regulatory body.   This looks like a kind of “conduit” by which influence might transcend from Ministers to the Recognition Body and, in turn, to the Regulatory Body and, next in line, to the press.  
Leveson LJ proposed that OFCOM be the recognition body.  As noted in an earlier post, it is the Communications Act 2003 which sets out the powers and duties of the Office of Communications (Ofcom).  Ofcom is a statutory corporation. It is required to report annually to Parliament. Although independent of Government, Ofcom has links to the Department for Culture, Media and Sport (DCMS) and to the Department for Business, Innovation and Skills (BIS), and the Secretary of State is required to lay Ofcom's annual report before Parliament.  The role of Ofcom has expanded – (see Ofcom) – and it is reasonable to question whether it is truly in a position to take on the further role of a recognition body for the press.

In a post on his blog, Charon QC said that “we should be very wary of implementing  the Leveson Report proposals with ‘statutory underpinning’.  He argues:

 It might be an idea to provide resources to enforce existing laws and encourage press self regulation underpinned not by further legislation but by existing criminal and civil laws – and reform the law of libel and privacy to provide a cheaper resolution basis when things go wrong while they are at it? We certainly need to reduce the ‘chilling’ effects of high costs in libel and privacy actions. Is that so difficult to achieve through law? Leveson was right on that issue. The Press has to step up to the plate and provide a credible and respected medium for self regulation.

Writing in The Telegraph 30th November - Why Leveson's proposals are nothing like the First Amendment- Rupert Myers pointed out that "at the centre of Lord Justice Leveson’s report is the idea that legislation should enshrine the protection of the press. Like many people, I tend to prefer a jurisprudential approach which takes as the starting point the presumption of absolute liberty, restricting via laws only a discrete set of acts, rather than a philosophy which tries to claim that the law and the state gives us our rights as packages. This is why the notion that a law could "enshrine, for the first time, a legal duty on the government to protect the freedom of the press" should not be considered necessarily to be any real protection.

Media intrusion into the lives of some people has caused immense hurt – “wreaked havoc” in Leveson’s words.  However, the Prime Minister queried whether it was wise for Parliament to Cross the Rubicon by introducing legislation in this area.   One feels that he is right in suggesting that, once Parliament legislates, it becomes easier to enact further legislation since a principle has been conceded or, at least, partially so.

Even if Leveson is right in saying that his scheme is not statutory regulation of the press, it is not entirely unreasonable to characterise it as a step in that direction and further steps then eventually become more palatable particularly in the political climate likely to follow something “going wrong.”  Maybe we are becoming rather too ready to abandon various freedoms which have, on the whole, served us well.

See Informm's blog for several posts about Leveson.  I enjoyed reading this one -  Leveson Lingo - how to talk your way around the Leveson report

James Wilson, the author of the A(nother) lawyer blog writes - 5th December - The Leveson Inquiry - the press, the politicians, Parliament, the police and the public- "An independent regulator “underpinned” by statute looks like a statutory regulator at one remove, if not a statutory regulator by any other name."

Summary of the Leveson report

Update 5th December:

A meeting was held on 4th December at 10 Downing Street.  News editors were told to get on with implementation of a replacement to the Press Complaints Commission.  If they are considered to have failed in this, then legislation will follow - The Guardian 4th December report about the meeting.

The BBC  - "Leveson report: Cameron tells editors to sort out regulator"

Tony Gallagher of The Daily Telegraph tweeted about the meeting - "19 editors & industry reps, 9 mandarins, 3 ministers and 1 PM. We got coffee and still tap water. No beer & sandwiches" and "It felt like the summoning of the Five Families in The Godfather"

Families meet - The Godfather

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