Monday 18 March 2013

The path to censorship of the media

Update 1 ~ Other links etc.

Update 2 ~ The Royal Charter on Self Regulation of the Press 

Update 3 ~ Reaction in the media - exemplary damages

Update 4 ~ Amending Royal Charters

Update 5 ~ Bloggers        Update 6 ~ Further comment

Update 7 ~ Scotland and the Royal Charter

In November 2012, Lord Justice Leveson published his report - (his principal recommendations are summarised here).  Leveson LJ said:

The goal must be a genuinely independent and effective self regulatory system. I have therefore set out, and recommend a model for independent self regulation that I am confident would protect both the freedom of the press and freedom of speech along with the rights and interests of individuals; it should therefore command public confidence."

Dominic Sandbrook, writing in the Daily Mail 17th March, presents a powerful argument against media regulation - For centuries men and women fought and died for freedom of expression.  Who are Miliband and Clegg to throw it away?  Sandbrook argues that many matters of enormous public concern would not have received publicity if media regulation had been in place - e.g. The Daily Mail naming those it considered guilty of the Stephen Lawrence murder, the expenses scandal in Parliament, revelations about corrupt police officer Dizaei, Huhne's speeding points etc.

It seems true
to say that the argument against media regulation is now lost.  More is the pity!  However, the precise detail of the regulation remains to be seen.  At the time of writing, it appears that there might even be a Royal Charter PLUS legislation - see The Guardian - Press Regulation deal: the key points.  Lord  Justice Leveson's proposal was for statutory underpinning of the regulator.  The matter is to be debated in the House of Commons. It will be interesting to see just how many elected members oppose regulation.

The Guardian 18th March - Press regulation deal hailed by Labour after last-ditch talks

The Telegraph 18th March - Leveson deal reached on press regulation, claims Labour - David Cameron has agreed to create a new press regulator set up under a Royal Charter and "a bit of statute", Labour said today.

Earlier posts:

Who is to guard the guardians? 29th November 2012

Guarding the guardians - the Leveson report and the Rubicon - 3rd December 2012

Press regulation ~ the Labour Part's draft bill - a new role for the high Court? 11th December 2012

Letters Patent ~ Royal Charters ~ Press Regulation. 13th February 2013

Update 1 ~ Other links etc

Iain Martin has written a powerful blog opposing the royal charter deal at the Telegraph. Here's an extract.
To understand how far we've sunk already, try imagining hearing the following headline from the US: "The White House and Congressional leaders have announced that they are close to agreeing a deal on press regulation." This simply would not happen; it would not compute with most Americans; they would find it baffling, and not remotely a question of Left or Right. For a Democrat or a Republican, it would come down to free expression.
Mark Elliott, a law lecturer at Cambridge, has written a learned post at the Public law for everyone blog on the royal charter mechanism proposed by David Cameron.  Elliott says that the proposals do not amount to statutory underpinning in the sense envisaged by Lord Leveson.

Richard Edwards - Bristol - Leveson's legacy: the licensing of blogs and twitter?   Of course, bloggers were not the culprits behind the phone hacking and other press wrong-doing that led to Leveson. Indeed, Leveson failed to properly discuss electronic media. But this has not prevented our politicians from seizing the opportunity to regulate blogging with regulatory changes that are more at home in Beijing than Britain.

Update 2 - Royal Charter on Self-Regulation of the Press

The DRAFT text of the charter has been published

Update 3 - Reaction in the media - Exemplary damages:

The Independent 19th March - Politicians agree deal on post-Leveson Royal Charter for press regulation .... refuse to sign up

The Telegraph 19th March - David Cameron's Leveson deal is 'threat to press freedom', says human rights watchdog

The Guardian 19th March - Press regulation: newspapers bridle at 'historic' deal - there is particular concern over the question of 'exemplary' damages.  Amendments to the Crime and Courts Bill are aimed at granting a power to award these damages - see Bill amendments

To move the following Clause: -

‘(1) This section applies where -
(a) a relevant claim is made against a person (“the defendant”),
(b) the defendant was a relevant publisher at the material time,
(c) the claim is related to the publication of news-related material, and
(d) the defendant is found liable in respect of the claim.
(2) Exemplary damages may not be awarded against the defendant in respect of the
claim if the defendant was a member of an approved regulator at the material
(3) Where the court is not prevented from making an award of exemplary damages
by subsection (2), the court -

(a) may make an award of exemplary damages if it considers it appropriate
to do so in all the circumstances of the case, but (b) may do so only under this section.
(4) Exemplary damages may be awarded under this section only if they are claimed.

(5) Exemplary damages may be awarded under this section only if the court is
satisfied that -

(a) the defendant’s conduct has shown a deliberate or reckless disregard of an outrageous nature for the claimant’s rights,
(b) the conduct is such that the court should punish the defendant for it, and
(c) other remedies would not be adequate to punish that conduct.
(6) Exemplary damages may be awarded under this section whether or not another
remedy is granted.
(7) The decision on the question of -

(a) whether exemplary damages are to be awarded under this section, or 
(b) the amount of such damages, 
must not be left to a jury.’

This is a draconian provision in a fee society and is likely to be a powerful deterrent to the publication of anything which might be seen, at the time of the publication, as running any risk of the exemplary damages provision being applied.   These provisions will heavily engage the European Convention on Human Rights (Art 10|) and they are intended to be a remedy for use only where other remedies are inadequate but it will be a brave newspaper which opts to be the first to test these provisions in the courts.  For example, what does 'outrageous nature' mean? - when should a court punish the defendant? etc.

Further article - Hugh Tomlinson QC - Hacking, blagging, bribing?  The press after Leveson

Update 4 - Amending Royal Charters

An amendment to the Enterprise and Regulatory Reform Bill has been put forward by Lord Stevenson of Balmacara.  The amendment may be seen in the Fifth Marshalled list of amendments.  It states:

"Royal Charters: requirements for Parliamentary approval

Where a body is established by Royal Charter after 1 March 2013 with functions relating to the carrying on of an industry, no recommendation may be made to Her Majesty in Council to amend the body’s Charter or dissolve the body unless any requirements included in the Charter on the date it is granted for Parliament to approve the amendment or dissolution have been met.”

The draft Press Charter (at 9.2) states:
Before any proposal (made by any person) to add to, supplement, vary or omit (in whole or in part)
a provision of this Charter (“proposed change”) can take effect a draft of the proposed change must have been laid before Parliament, and approved by a resolution of each House. For this purpose “approved” means that at least two-thirds of the members of the House in question who vote on the motion do so in support of it.

The amendment to the Bill offers some underpinning of the 2/3 majority but nothing will prevent Parliament legislating for anything it wishes - (see Of Interest to Lawyers blog).  Note also, it is only a 2/3 majority of those who actually bother to vote!  

Update 5 ~ Bloggers:

In a further article, The Guardian looks at whether bloggers will be affected by the regime - Bloggers may face libel fines under press regulation deal

Update 6 ~ Further comment

The Guardian 19th March - Press regulation: a victory for the rich, the celebrated and the powerful
This new press regulator is all about revenge, not justice. It's hard to imagine a more chilling deterrent to serious investigation.

The Guardian 19th March - Press regulation: publishers may have grounds for legal challenge - Newspapers likely to take action over regulations that will require huge payouts when stories are wrong

The Guardian 20th March - Press regulation approval to go ahead under multiple proposals 

Inforrm's Blog - Gill Phillips - Briefing note on exemplary damages and costs

Update 7 ~ Scotland and the Royal Charter

A further very interesting angle is discussed by I. Jamieson, 'The Leveson Report, the Royal Charter and the Scottish Parliament' UK Const. L. Blog (20th March 2013).  The same blog has also published a 'reply' to Jamieson - see Aileen McHarg: The Leveson Report, the Royal Charter and the Scottish Parliament: A Reply to Jamieson


  1. Obiter, as a lawyer, could you tell me what would happen if, say, the Daily mail located its servers in Canada or the USA and continued to "name and shame" as it currently does? Could the law extend to them? Could this all be a government plot to force everyone to get their news online?

    1. It seems likely to me that there would still be a 'publication' in England and Wales. At present, there are many questions and fewer answers. I will return to this topic in the near future.