The Post-Leveson Landscape ABSTRACTS

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INSTITUTE OF ADVANCED LEGAL STUDIES

SCHOOL OF ADVANCED STUDY UNIVERSITY OF LONDON

W G HART LEGAL WORKSHOP 2013

The Constitution of the Public Sphere: The Post-Leveson Landscape

ABSTRACTS

Dr Annabel Brody, University of Amsterdam. Re-regulation of the print media: implications on press freedom

Despite the application of neo-liberalist principles and a trend towards deregulation of the audiovisual media, there has been a marked trend towards stricter regulation of the print media in recent years, as reflected in the jurisprudence of the European Court of Human Rights and reports on freedom of the press such as the Leveson report, Australian reports on media regulation and the report of the New Zealand Law Reform Commission on the ‘new media’. This paper will provide an examination of the ECtHR’s restrictive trends on press freedom, which may be a reaction to the increasingly sensationalist and privacy intrusive activities of the media, which have come to light in particular during the Leveson Inquiry. In Stoll, the Grand Chamber cited the powerful influence of the media of the twenty-first century on public opinion as a reason for an increased need to “monitor” compliance with journalistic standards and as justification for a more limited interpretation of freedom of the press. This appears to be in stark contrast with the Court’s reasoning in the subsequent case of Times Newspaper Ltd v UK in which the ECtHR acknowledges the vital role played by the new media, particularly the internet, in making news and information available to the public. In this case the ECtHR referred to the vital function of the internet in twenty-first century democratic society as an addition to the traditional ‘public watchdog’ role of the press. This could indicate that the Court has seen the error of its ways in Stoll and is now returning to normal course. The Leveson report, Austral reports and New Zealand Law Reform Commission report have all recommended stricter regulation of the print media through, for example, the inclusion of the state as a regulatory actor. Self-regulatory press councils have been widely criticised as weak in that they rely on full co-operation from their members in order to enforce their sanctions. As such, questions have arisen regarding the introduction of backup powers if press council members fail to comply with press council decisions. This paper will consider the pros and cons of the introduction of such measures and the implications of stricter regulation of the print media on press freedom.

Dr Damian Paul Carney, University of Portsmouth Newsgathering and Criminality: A Time for Re-Assessment of Current Privileges, Protections and Defences

The important role that the media plays in a democratic system has resulted in it acquiring privileges (e.g. the requirement that when police are seeking journalistic material they cannot obtain this through usual police searches - see ss9 -14 and Schedule 1 of Police and Criminal Evidence Act 1984, and Schedule 5 of the Terrorism Act 2000), or being the main beneficiary of general legal rules (e.g. protection of confidential sources), that enable it to perform its ‘watchdog’ and other ‘public interest’ roles. However, it is apparent from the Leveson Inquiry and ongoing police investigations (Operation Weeting, Operation Tuleta and Operation Elveden) that a significant number of journalists have been engaged in unlawful activity. The journalists themselves have often used the claim of protection of confidential sources to hide illegal activities, whilst the initial investigation into phonehacking allegations (Operation Caryatid) was hindered by News of the World’s ‘veneer of apparent co-operation’ from seeking production orders of journalistic materials. This paper explores the idea that the special protection afforded to confidential sources and journalistic materials should be limited to acts of journalism which achieve the 2

instrumental values that underpin free speech or freedom of the press such as democratic dialogue or checking the powerful. It critiques the current law on protection of confidential sources demonstrating why the current Strasbourg influenced rule utilitarian approach to the issue is ill-suited to many of the realities the modern mainstream media, and the emerging new media. It will also examine the criticisms put forward by the Metropolitan Police into the operation of the special procedures relating to journalistic materials. The paper’s advocacy for protection for journalism which has only ‘public interest’ benefits, allows the exploration of the debate that changes to the law need to be made to encourage more ‘public interest’ journalism. In particular, it will examine the debate as to whether there should be an ‘overreaching’ public interest defence or specific public interest defences in certain statutes which journalists will be able to rely upon.

Dr Aymeric d’Alton, Hurting in Defaming

Defamation, embraced by the legal theory of torts, creates a new boundary between the members of the community. Violating such a boundary basically characterizes a wrong, the victims of which are entitled to stop by means of a legal action. This paper intends to focus on the nature of this boundary so firmly protected by the general theory of torts. This boundary, an emotional boundary, establishes some kind of minimal “distance” between people. That distance is not a physical distance, being further or closer to someone else in light of such an emotional dimension would not make any sense. A general outlook would limit the defaming boundary to the material analysis of the defamation. However, because defamation is embraced by the general theory of torts, any analysis of defamation cannot limit its scope to the material analysis although it remains a necessary starting point to grasp the legal concept of defamation. General theory of torts actually embraces the defamation as a cause of action in so far as defaming hurts the other. Furthermore the concept of hurt reveals the extent to which one is diminished in its being by the defaming content, the right to act towards the defaming content happens to exist, once the hurt one intimately feels and suffers the impoverishment of its self-esteem. Because of the social consequences such a feeling and suffering might have, the concept of defamation, as a cause of action, is embraced in so far as it permits to maintain and protect not only the freedom of speech in the public space from any abusive ban but the private space from any destructive public intrusion as well.

Richard Danbury, University of Oxford Sowing dragons' teeth: a right of Press freedom

This paper defends the proposition that media freedom can be conceived as a right. Two different accounts will be advanced of why a right of media freedom can be recognised: the first, a deontological argument, and the second a rule-based consequentialist argument. The deontological argument is based on Dworkin’s writings, despite the fact that he rejects the idea that Press freedom should be recognised as a right. The consequentialist argument is derived from the work of Raz. The deontological argument rests on the idea that media freedom is an inherent aspect of a liberal democracy, and consequentially, to an extent, a freedom that necessarily has to be recognised in a liberal democracy. The argument has significant flaws, but is useful in laying the ground for consideration of the consequentialist 3

approach. The consequentialist case is in essence that media freedom is a public good as it an aspect of a common liberal culture, and that living in such a culture affords fundamental benefits to individuals, so there is sufficient reason to afford rights to individual members of the media, which together constitute a right of media freedom. The consequentialist account will be described and critiqued. The consequences of media freedom being a right include the idea that the law should not permit harm to be a sufficient reason in and of itself to curtail media speech and activity; and hence that the causing of harm by the media should not, of itself, be seen as an indication of a need to regulate the media. Milton noted that speech should be protected even though it can cause harm, and to this end likened speech to the dragon’s teeth of Greek myth which, when sowed, grew into armed men. So, too, the media should be protected even though it can cause harm.

Professor Giovanna De Minico, University of Federico II, Naples Internet, Democracy and New Fundamental Rights The focus of this paper is whether and how we can regulate the Internet and the freedoms exercised within it. The work will be divided in two parts, the first concerns self- regulation and alternative forms; the second examines models of regulation as these intersect with fundamental rights. The author challenges the myth of an uncontrolled self-regulation sensitive to the sole private interests in favour of a streamlined public presence, so as to prove decisive on the issues of the Internet governance and the order of law’s sources. The second deals with the regulatory models underpinning online freedoms: the automatic implementation of the rules concerning off line rights; the absence of any rule whatsoever or the creation of ones “porous” to the technical specifications of the media. The Supreme Court of the United States provides in Reno v ACLU an insight into how the unique nature of the internet affects traditional values. The internet they noted is not comparable with television. The ruling suggests the necessity to envisage regulations as means of diffusion “tailored to the specific technicalities of the instrument”. In the case of the Internet the regulatory appropriateness can bear a further meaning: maintaining regulation at a minimum, because the net is an irreplaceable instrument for individual growth and the fostering of informative fluxes. This entitles it to claim protection against heavy authoritative intervention: “the most participatory form of mass speech yet developed it entitled to the highest protection from governmental intrusion”. In North-American culture the freedom of speech will also prevail over the danger that the net may be used as instrument of terrorist aims. Their basic assumption was that between the repression of ideas and their broadest circulation the latter should prevail, since it possesses in itself the antibodies against terrorist threats, hard contents, offensive or even hateful speech. The ‘red thread’ between the two parts unravels in the individuation of supra-national values, the Internet’s democratic nature and the effectiveness of new rights, necessary for a technological progress benefitting everybody, not just those already enjoying a commanding position in the economic competition or democratic activity.

Dr David Eordos, University of Oxford A new role for data protection vis-à-vis the media in the post-Leveson environment?

This paper explores in comparative European perspective the potential future role for data protection vis-à-vis the ‘media’ broadly conceived in the post-Leveson environment. It is too early in the process of the fall-out from the Report to be able to state definitely what all its implications will be. In particular, although it is clear there will be wholesale adoption of Leveson’s proposals for reform of the Data Protection Act (DPA), what if any more limited legislative change may forthcoming remains opaque. A number of matters are, however, much more clear. Firstly, the Report has given an unprecedented prominence to data protection in this area which will likely have an effect on a range of relevant actors including the judiciary and, to a certain extent, even the public at large. Secondly, it has finally forced an increasingly reluctant Information Commissioner’s Office (ICO) to engage with this issue and explicitly set out the limitations which data protection imposes even as regards the activities of the mainstream media. This forcing of the ICO’s hand will ensure that the Office will have at least some role in underpinning the functioning of the new press regulator once it is established. Thirdly, and perhaps more importantly, the articulation of such limits will likely increase the pressure on the ICO to develop a coherent strategy to oversee in a more direct way the legal landscape vis-à-vis new ‘social’ media actors. Most, if not all, of these actors will almost certainly largely fall outside the ambit of the new press regulator yet do not fall outside the scope of data protection legislation. Pressure for a new approach by ICO here has been developing for some time and was given a significant boost by the High Court’s Kordowski decision of 2011 – a decision cited with clear approval in the Leveson Report itself. If the ICO seizes the opportunity of developing a balanced and principled approach in these twin areas then it – and data protection law more broadly – clearly has the potential to play a significant and useful role in the ‘media’ area in the future. Whether it will take such a path, however, remains to be seen. The paper will consider these issues in comparison with the stance taken both in the legislation and in the regulatory practice of Data Protection Authorities elsewhere in the European Union.

Thomas Gibbons, University of Manchester Media Influence on the Shaping of Media Law

Even before Lord Justice Leveson had completed his Inquiry, and as he noted with some regret, the press industry was indicating its resistance to a statutory basis for its regulation. It has continued to oppose the introduction of alternative methods to implement Leveson’s key principles. This raises interesting questions about the standing of the press as a participant in democratic discussion concerning its role and possible constraints on its activities. Deliberative approaches to democracy encourage as wide a base for discursive contributions as possible, partly to counter the limitations on open discussion that are imposed by formal democratic institutions and, indeed, by the media themselves. Deliberative approaches also tend to allow that the basic rules of discussion can be contested at any time, again to enable all voices to be heard. Should these precepts be modified in the face of media institutions that, in their very representations, can influence the persuasiveness of arguments about the scope of their actions? In considering these issues, this paper examines possible sources of media influence on various areas of law that have a particular impact on the media:

defamation, contempt of court, privacy, media ownership.

Dr Mariusz Jerzy Golecki, University of Łódź Scylla and Charybdis: The Reford of Defamation Laws in Comparative and Economic Perspectives

The present British debate on media regulation reflects profound tensions between different interest and values. On the one hand freedom of speech seems to be an underpinning of any democratic state, whereas on the other hand the protection of individual’s privacy and reputation may confine its scope to considerable extent. The extent to which freedom of speech and right to privacy may interact and possibly conflict seems to be reflected by the laws on libel. The Leveson Report (Part J, ch. 3) contains some recommendations concerning the change of procedure. Nevertheless the substantial modifications have been introduced with the enactment of the Defamation Act 2013. Two issues require particular attention. Firstly, the optimisation of the liability rule for libel by: introduction of the requirement of serious harm (Defamation Act 2012 sec. 1), specification of statutory defences (sec. 2-4) and the regulation of websites operators (sec.5). Secondly, the limitation of jurisdiction of English courts (sec. 9). The paper will thus concentrate on the evaluation of these changes in two aspects: the relation between the new British libel laws and other legal systems, namely the American and European regulations, and the economic analysis of libel law. Two points of reference require particular attention. Firstly, the American solution adopted by the U.S. Supreme Court’s decisions in New York Co. v. Sullivan (1964) and in Gertz v. Robert Welch (1974) and safeguarded by Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act 2010. Secondly, since the Art. 10 of the European Convention on Human Rights constitutes a meta- rule for national laws, the question arises to what extent the present British liability standard for libel complies with the jurisprudence of Strasbourg court (cf. eg. Bladet Tromso v. Norway (1999)). The same regards the relationship between the Defamation Act 2013 and the recent evolution of the EU law (cf. Olivier Martinez v. MGN Limited (2011) C-509/09 and C-161/10 and Google Inc. v. Agencia Española de Protección de Datos C-131/12) (pending). Both issues, namely the standard of liability for libel and the intra-jurisdictional concerns seem to be strongly connected, creating the platform for “competition of jurisdictions” in case of libel (cf. eg. EU case C-68/93 Fiona Shevill v. Presse Alliance SA. (1995)). The economic analysis of libel laws concentrates on the comparison of different liability regimes. Since the seminal works of R. Posner, S. Shavell or N. Garupa there is no agreement whether negligence or strict liability is more efficient in enhancing both the spread of public information and the protection against defamation. In the paper I will present a broader background concentrating on different liability regimes as modelled by J.P. Brown. Brown’s model of efficient tort liability will thus serve as a benchmark for the comparative analysis of British, American and European (ECHR and EU) regimes. The prediction concerning the further evolution of libel laws will be offered as well, given the assumptions concerning the optimisation of liability rule.

Dr Irini Katsirea, Middlesex University Online press and broadcasting: ‘Press-like’ or ‘TV-like’?

As online news reporting becomes increasingly significant and as traditional newspapers vie with websites, blogs and social media for the attention of the public, any future-proof system of press regulation faces an unprecedented challenge: Where to draw the regulatory boundaries when the walls between previously insulated means of communication are crumbling. Lord Leveson suggested that the new regulatory system should also cover ‘press-like services’, a concept inspired by the Audiovisual Media Services Directive’s requirement for on-demand audiovisual media services to be ‘television-like’. However, the categories of ‘press-like’ and ‘television-like’ raise more questions than they provide answers. The advent of digital technologies, and especially the Internet, has led to a convergence between print and audiovisual media. Both online versions of newspapers and magazines and broadcasters’ websites offer videos accompanied by textual information. The decision as to whether a service’s centre of gravity lies in the provision of audiovisual or of text-based content is fraught with difficulty. Several of ATVOD’s determinations concerning the classification of newspaper publishers’ websites as on-demand programme services have been successfully appealed to Ofcom. On the contrary, the Austrian Bundeskommunikationssenat ruled recently that the video section of a regional newspaper met all the criteria for a ‘television-like’ on-demand service. Other regulators such as the CvdM in the Netherlands and the CSA in Belgium have also adopted guidelines for the case by case assessment of audiovisual media services of hybrid content, including newspaper websites. The concept of ‘press-like’ is equally elusive. In Germany, ‘non-programme related press-like services’ have been excluded from the online public service mandate as a result of political pressure from the publishing sector. However, it is unclear which services are to be considered as ‘press-like’. According to the Interstate Broadcasting Treaty press-like services are not just the electronic editions of print media, but all journalistic edited offers which correspond to newspapers or magazines in their design and content. Some argue that this provision encompasses all online offerings that constitute a functional equivalent of a newspaper or a magazine. This broad interpretation of ‘press-like’ would render big part of public service broadcasters’ online presence unlawful. Public service broadcasters, on the other hand, only consider electronic versions of newspapers that display static text and image combinations to be ‘press-like’. This view has recently been rejected by the Landgericht Köln, which classified the ARD Tagesschau app as a non-programme related press-like service. The Leveson report uncritically adopts the ‘press-like’ category but fails to tackle the fundamental question as to whether a diverging regulatory approach for print and broadcasting is still appropriate in an age of convergence. The High Level Group’s recommendation that new regulatory frameworks need to cover all types of journalistic activities, regardless of the transmission medium, brings this pressing question to the fore. Having the abovementioned comparative insights as its starting point, my paper proposes to discuss the adequacy of the emerging scheme of press regulation and the feasibility and desirability of a more convergent model.

Perry Keeler, Dickson Poon School of Law, King’s College London Leveson and Freedom of Speech: The Unintended Consequences of Constitutionalisation

The Report of the Leveson Inquiry made plain the deep impact of the European Convention of Human Rights on English law and legal discourse since the Human Rights Act 1998 came into force. Articles 10 and 8 are now familiar points of reference in English law, as are the principles of necessity and proportionality. For some legal commentators, press opposition to Leveson’s recommendations is therefore no more than political manoeuvring to evade fundamental principles of law. The crisis of the moment is consequently the need to find a framework in which the British press can be made to honour these principles while also preserving its independence There is however an altogether different perspective on what is occurring and what is at stake. The introduction of the Convention directly into English law has obscured important connections between British legal and political culture and other conceptions of the freedom to speak and publish. These include intense opposition to state restrictions on public expression and a forceful commitment to transparency, scrutiny and critical comment on public affairs. Typically, such arguments are also linked with expectations that individuals and communities maintain a robust tolerance for offensive and even harmful expression where necessary for the preservation of a broad sphere of liberty. Ideas of this kind, most often associated with American First Amendment jurisprudence, were certainly never dominant in the formation of English legal principles before the enactment of the HRA 1998. Nonetheless, long standing opposition to press licensing or to privacy torts here was not unrelated to this influential conception of free speech in a democratic society. Given its common law methods and lack of comparable judicial authority, English law prior to the HRA was relatively impervious to American constitutional doctrine. Yet constitutionalisation has now changed the nature of legal discourse in ways that have paradoxically closed the gap between English and American law. Despite being firmly yoked to the European Convention, British lawyers and law makers are continually drawn to U.S. counter examples, such as the constitutional privilege in libel law. The communications revolution has moreover thrust First Amendment claims regularly into English courts in jurisdictional clashes over the liability of American based online publishers and intermediaries. The British media, now competing directly with American news and entertainment providers for online consumers, are also well versed in the comparative advantages offered by the U.S. constitution. In this paper, I argue that the apparent maturity of European fundamental rights principles relating to the media belies a distinct and growing fragility in their incorporation into English law. Liberty based principles, well adapted to the internet era by American courts, have become a powerful force not only within British public life but also within English law. As the Defamation Act 2013 witnesses, this parallel constitutional universe inspires law making that is at the very least in clear tension with principles articulated in Strasbourg. Opposition to the Leveson vision of an independent but also accountable British press is thus underpinned by an alternative and even authoritative conception of free speech.

Professor Andrew T Kenyon, Melbourne Law School Free or Expensive Speech? Defamation Reform Reconsidered

While the Defamation Act 2013 makes some noteworthy changes to legal doctrine, its impact largely awaits judicial interpretation. Much of that interpretation may mirror the

generally incremental approach of the Act itself: the reforms may be evolutionary overall. At this stage, however, the reforms can usefully be placed within a larger context. This paper does that for two aspects of the reforms: the public interest defence that has replaced Reynolds privilege and remedies. While the parliamentary record illustrates differing approaches to the public interest defence and suggests options for its interpretation, the defence can also be seen as one further step in a long process of providing greater protection for speech. The step taken, however, remains within a model of defamation law that has difficulty in sufficiently accommodating speech or dealing with reputation. At the same time, the reforms have done comparatively little with regard to remedies. Calls for different remedies in defamation, seen for decades within the English language literature, remain unfulfilled even though changes such as a right of reply would often provide more appropriate ways of dealing with interests at stake in defamation. It seems that greater change in both these aspects of defamation law remains needed: stronger protection for public interest speech and speech-based remedies for the subjects of publications. History would suggest that calls for such reform could be expected in coming years, perhaps all the quicker given ongoing transformations in the environment for public communication.

Dr Daithi Mac Sithigh, University of Edinburgh From newspapers to news-related material: Internet exceptionalism after Leveson

One of the difficult issues encountered by designers of regulatory systems for the media is that of defining the scope of regulation. This was the most debated issue when the EU adopted the Audiovisual Media Services Directive in 2007, and has dominated the work of the Authority for TV on Demand (ATVOD) since it was designated as the co-regulatory body for ‘TV-like’ on-demand services in 2010. In the report of the Leveson Inquiry, the question of scope and technology is touched upon – but it has fallen to those taking forward the recommendations, including the drafters of the proposed Royal Charter and legislative changes in the UK, and the McCluskey Committee in Scotland, to deal with it in a definitive fashion. It was not surprising that a particular issue of scope (application to the Internet, including blogs) was a matter of debate when these proposals were circulated. In this paper, it is argued that this problem reflects a core debate in cyberlaw on the ‘difference’ of the Internet, rooted in mid-1990s arguments (primarily from US authors taking a libertarian approach), which is more prominent in relation to ATVOD and the post- Leveson regulatory debate than in other areas of law affected by technological change. The author proposes a number of models of how scope can be defined (from existing regulatory systems in the UK and elsewhere), suggesting that the approach taken by the UK government draws upon too many of these models to be workable. However, drawing upon previous work (a comprehensive study of ATVOD’s ‘scope determinations’ and appeals against ATVOD decisions to Ofcom), two alternative systems for scope are presented and assessed.

Dr. Tarlach McGonagle, University of Amsterdam Lessons for or from Leveson?: A critical examination of the Council of Europe’s new (half- baked) notion of media

Many of the issues and problems that have featured prominently in the Leveson Inquiry and Report and related debate have also been preoccupying law- and policy-makers at the Council of Europe. For instance, the organisation’s Committee of Ministers adopted a Recommendation to member states on “a new notion of media” in 2011. This Recommendation represents the Council of Europe’s most explicit attempt yet to calibrate a comprehensive and coherent set of regulatory and policy approaches to an increasingly diversified and crowded media “ecosystem”. The Recommendation’s central theme is neatly captured in the reference to the “future shape, operation and coherence of media regulation” (Hart Legal Workshop, CfP). The Recommendation describes the role traditionally played by the media in society and the evolving relationship between traditional and new media. It documents various technology driven changes in the media sector and their broader consequences, including “unprecedented levels of interaction and engagement by users, offering new opportunities for democratic citizenship” and the facilitation of “users’ participation in the creation process and in the dissemination of information and content, blurring the boundaries between public and private communication”. The nature, pace and societal implications of these developments prompt a need for the re-examination of existing media policy across the Council of Europe’s member states. The Recommendation advocates regulatory and policy measures that are “graduated and differentiated according to the part that media services play in content production and dissemination processes”. Despite the political topicality of its central theme, the Recommendation has yet to fire national media regulatory imaginations throughout Europe and it has only been subjected to scant scholarly scrutiny. This paper will explain why the Recommendation has largely flown below the policy-making and academic radars and stress the urgency to re-examine it. The Council of Europe is currently shaping up to formally consider the (initial) impact of the Recommendation later this year and to generally continue its exploration of regulatory policies for the reconfigured media environment. Meanwhile, the post-Leveson debate is intensifying. The development of a dialogical relationship between both processes could prove instructive for everyone involved. What could the Council of Europe learn from Leveson, and vice-versa? This paper will mount a rigorous examination of the Recommendation and commend its ambitious attempt to articulate the case for a graduated regulatory system for the contemporary communications ecosystem. However, the paper will fault the Recommendation for its lack of firm grounding in the case-law of the European Court of Human Rights. It will ultimately argue that the Recommendation’s substantive, conceptual, terminological and structural shortcomings have combined to compromise its usefulness as a source of regulatory guidance for national media regulatory authorities. Concrete examples of each set of shortcomings will be provided. The paper will then compare and contrast key approaches of the Recommendation and the Leveson Report. It will conclude by proposing some modest suggestions and safeguards to ensure the viability of a graduated and differentiated regulatory system in practice.

Chris Mhike, Partner, Atherstone and Cook / Zimbabwe Media The future shape, operation and coherence of media regulation

While the recent release of The Leveson Inquiry Report 1 through the presentation of same to the United Kingdom Parliament and subsequent print of the Report for wider distribution has undoubtedly enriched media law and policy jurisprudence, not just in the United Kingdom (UK), but also internationally in numerous other jurisdictions, the same document today poses the real danger of hardening the resolve of dictatorships and undemocratic regimes, in their suppression of the press. It must be remembered that the UK is an influential society and system, whose steps and measures are closely watched, and sometimes followed, around the world. Numerous countries have in recent years, carried out inquiries into media regulatory and press behavioral traits and produced reports from those inquiries, but not many of those reports have received as much coverage and interest as we have seen in the case of the Lord Leveson Report.2 Although the findings and recommendations by Lord Justice Leveson pertain to the United Kingdom, the implications thereof are, in all probability, impacting on jurisdictions and political systems beyond the UK. Even in the New Zealand Review Process, allegations have been made against the Law Commission (but denied by the Chairman), that the recommendations made by the New Zealand body, were heavily influenced by the outcome of the Lord Leveson Inquiry. The Leveson report comes in the wake of the prominent global debate on the best model for media regulation – self, statutory, or dual regulatory systems. Unfortunately, repressive regimes around the world have found in the Lord Leveson Report, one more ‘leg to stand on’ in their justification for the promulgation and retention of draconian media laws in the statute books, and in their implementation of restrictive media policies. Even in developed nations, certain organizations have been encouraged to entrench secrecy into systems that should ordinary be transparent and easily accessible to the public, at least as far as the free flow of information is concerned.3 In all cases – repressive regimes resorting to the subject Report, and authorities in developed nations tightening the taps on the information flow pipe; the interpretations applied to the Report have invariably been flawed, inaccurate or outright wrong.

Self Regulation, Statutory Regulation or Dual Regulatory System? On the one hand, media freedom advocates, mainly in the form of Civil Society Organizations (CSO’s) have in recent years largely pushed for self regulation in the media,

1 Report by the Right Honourable Lord Justice Leveson, after an inquiry into the culture, practices and ethics of the press in the United Kingdom, pursuant to Section 26 of the UK Inquiries Act 2005. And Report ordered by the House of Commons to be printed on 29 November 2012.

2 For instance, in On 14 September 2011 the Government of Australia established an independent inquiry into the Australian media. Australia Former Federal Court Judge Ray Finkelstein, was appointed by the Government to chair the inquiry. In December 2011, the government of New Zealand Commissioned the country’s Law Commission to undertake a review of the current regulatory environment for the news media with respect to its adequacy in catering for new and emerging forms of news media – sometimes referred to as the “new media”.

3 http://hackinginquiry.org/comment/leveson-secret-arrests-and-the-rights-of-suspects-a-question-of- balance/ 11

particularly in respect of the print media.4 On the other hand, governments and politicians have strongly pushed for statutory regulation. Politicians and government bureaucrats in Zimbabwe and South Africa are a good example of the said pro-statutory regulation proponents.5 In the case of Zimbabwe, a dual regulatory system is now in place,6 this being a balance between the demand for self regulation by civil society and a significant portion of the private press, with the largely state controlled press’ preference for statutory regulation.7 As the debate rages on in Zimbabwe, South Africa, and Africa at large, there is however little regard to the legal and regulatory reform for the new, converging and social dimensions of the media landscape. The resultant legal and policy models in the respective media regulatory frameworks are therefore either wrongly referenced to the findings and principles established out of the Leveson Report, or irrelevant to the emerging mass media and mass communication platforms, or both. There has been a dismal failure in most cases by authorities outside the United Kingdom, to read the Leveson Report in its proper context.

Conclusion In the final analysis therefore, it is crucial that the following be done by academic, research, advocacy, media institutions, and other relevant players: 1. Further summarization of the capacious four (4) volume report, hopefully without over-simplifying the content therein, and 2. Roll-out of an intensive educational program for media industry leaders, politicians, policy makers and media regulators in as many societies as possible, on the actual and accurate content of the Report, particular focus being placed on repressive and potentially repressive regimes around the world, and 3. The production and wide distribution of model media regulatory laws and policy documents, that appropriately take into account the findings of the Lord Leveson Report, and 4. Further research on the effectiveness of the existing media regulatory models, and on how each can be improved in light of the weaknesses that blight each of them.

James Michael, Associate Senior Research Fellow, IALS 'How much was "hacking" and how much "blagging"? Was the facility for remote access to voicemail messages a non-functional vestigial feature, and if so, did service providers invite invasion of privacy by mis-design?

Twenty-eight years ago Gold and Schifreen 'hacked' into the Prestel message box of Prince Philip, were fined a few hundred pounds and won their appeal, leading to the Computer Misuse Act 1990. Now News International has paid millions of pounds for

4 See http://www.thezimbabwean.co.uk/human-rights/21180/misa-chief-calls-for-media-reforms-.html, and http://www.mediacentrezim.com/?p=352 5 See http://talkzimbabwe.com/webster-shamu-address-to-journalists-on-world-press-freedom-day/, and http://www.nytimes.com/2013/04/26/world/africa/south-africa-lawmakers-pass-contentious-secrecy- bill.html?_r=0 6 http://www.dailynews.co.zw/article/News/8846b94d-5f08-4b07-9a6f-5668acdf38fe 7 the Non Governmental grouping - Voluntary Media Council of Zimbabwe (VMCZ) operates the country’s media self regulatory system while the Zimbabwe Media Commission and the related Council – Media Council of Zimbabwe (MCZ) represent the statutory model in the country. 12

'hacking' into voicemails. Why was remote access to a cellphone's voicemail provided at all, and why was it so easy to ‘hack’? Should service providers bear at least some responsibility? Secondly, until now ‘privacy and the press’ has usually been about public disclosure of private facts. Most of the voicemail privacy complaints are not about public disclosure, but about past access to voicemails of which the recipient was not even aware. Thirdly, applying technology-specific legislation like the Computer Misuse Act to 'hacking' voicemails may depend on how 'smart' the cellphone was at the time. Should Leveson lead to more technology-specific legislation about the 'press', which is rapidly being replaced? Were the invasions of privacy considered by Leveson primarily about behaviour of the press, or breaches of the Data Protection Act? Should the implications for legislation be primarily about press regulation or about data protection? If the implications are primarily about data protection, should more attention be paid to the revised EU Regulation and Directive?

Professor Leslie J Moran, School of Law, Birkbeck College New challenges or same old same old; managing relations between the media and judiciary post Leveson

Relations between the media and the judiciary seemed to have escaped scrutiny by the Leveson Inquiry. Are we therefore to conclude that neither the Inquiry nor the aftermath have anything to do with those relations? If they have very little to say directly about the past, present and future of relations between the judiciary and the media, that relationship is certainly one that falls within Leveson’s shadows. It has long been the case that relations between the media and judiciary have attracted little systematic scholarly attention. There are a variety of reasons for this. Empirical research on the judiciary is underdeveloped. Examination of relationships between the judiciary and the media has relied too much on anecdote and assumption. Debates about cameras in the courtroom have detracted from consideration of the bigger picture of relations between the media and the judiciary and the study or representations of the judiciary in the media. There is also a longstanding assumption and expectation that the judicial branch of the state has a very different, more distant, relationship with the media than other branches of the state. The data found in the Leveson report about relations between the police and the media offers an invaluable snapshot of an interface between the justice system and media against which to explore contemporary relations between the judiciary and the media. The focus of the paper is the role of press and court communications offices in the UK. These are of recent invention. In many respects they are in sharp contrast to the police press and communications operations mapped by the Leveson Inquiry. How can these differences be explained? The operation of the judicial press and communication offices work in ways that are similar to other government press offices but there are also significant differences. What are these similarities and differences and how are we to make sense of them? Is the judiciary/media relation immune from the challenges and problems identified by Leveson? What if any are the post-Leveson challenges? In answering these questions this paper will draw upon a comparative empirical study I have been undertaking of court communications initiatives in a variety of common law jurisdictions. The data has been generated by way of semi structured interviews with court communications officers and members of the judiciary.

Eva Nagle, Barrister-at-Law, Law Library, Dublin “Unringing” the bell that has sounded so loudly: Trying to maintain anonymity when suing for defamation and breach of privacy in the Internet realm Social networking websites have become a far more potent tool than merely a means of posting photographs of your last holiday online. They can be used to create a “buzz” around a new business, to organise a protest or to assist some amateur detective work - which was at the centre of a recent Irish “Internet privacy” case of McKeogh v John Doe 1 (User Name Daithii4u) and others89. It is axiomatic that these novel uses of social networks such as Twitter, Facebook and YouTube create serious implications for privacy and defamation law in the online world. Some of the contemporary challenges to privacy law that are posed by such websites are encapsulated in the Irish High Court case of McKeogh. McKeogh concerned an action for defamation and breach of privacy. It arose from a case of mistaken identification of the Plaintiff by an anonymous YouTube user using the pseudonym “Daithi4U”. The user wrongly identified the Plaintiff as a person who was filmed on YouTube while evading paying a taxi fare in Dublin, Ireland in November 2011. Having obtained Norwich Pharmacal orders compelling the revelation of the identities of those who had wrongfully identified and defamed the Plaintiff on YouTube, the Plaintiff then made a separate application to the High Court to prevent newspaper coverage of his case, as he believed this would perpetuate the defamation. In his decision, Mr. Justice Peart, remarked that the case had caused a “…debate on weighty issues such as the right to privacy, right to freedom of the press to fairly and accurately report on court proceedings and the right to an effective remedy”. The McKeogh case highlighted the contradiction that exists in these cases where, in attempting to protect one’s identity and reputation, the Plaintiff may necessarily have their identity exposed for the purposes of pursuing their Court action to a greater level than had they decided not to pursue the action in the first place. The McKeogh case presents an opportunity to examine whether and how well Court rules relating to identification in Court “sit” with developments in privacy and defamation law in the Internet realm and to examine whether, there is ever an instance where maintaining anonymity may trump freedom of the press to report these cases? For instance, in Canada, in the case of AB v Bragg Communications10, the Supreme Court recently expounded an “objective discernable harm” test when weighing the arguments for maintaining the anonymity of the minor Plaintiff in a Facebook cyber-bullying case against the arguments for freedom of the press to report on proceedings. The conflict between online anonymity and the equally privacy-related question of accountability for defamation and breaches of privacy11 that are perpetrated online is evolving. Wrongdoing must be pursued without chilling the legitimate and socially valuable communications that social media promotes and celebrates. McKeogh presents an apt case study of questions of Court procedure and the right to an effective remedy that are at play in this area of the law.

8 Neutral Citation: [2012] I.E.H.C. 95. 9 Cases from the UK which involved similar issues include Applause Store Productions Ltd v Raphael [2008] EWHC 1781 (QB); [2008] Info. T.L.R. 318 (QBD), Cairns v Modi [2010] EWHC 2859 (QB) (QBD), Bryce v Barber Unreported July 26, 2010 (HC). 10 Supreme Court of Canada, 27th September 2012, 2012 SCC 46. 11 See generally, Daly, “Is there an entitlement to anonymity? A European and international analysis” [2013] EIPR 198 at 211. 14

Oliver O’Callaghan, City University, London What should we protect when we protect free speech? In the post-Leveson environment, and indeed during it, the reaction of many newspapers and media commentators was a blanket cries of “free speech” and “freedom of the press” without extrapolating what was meant by these broad, complex and nuanced rights. In the United States there is a vigorous and ongoing debate among scholars and practitioners about what precisely is the fundamental value that underpins their First Amendment free speech right12. In light of the seismic events of the last two years a similarly robust constitutional discussion should be taking place in the UK and Europe more generally. This paper will explore the terms of this debate. The rationale for free speech and a free press is that it is necessary, indeed indispensable, to democracy yet so much of what occupies our newspapers has very little to do with the democratic process. As such there are those who advocate a narrowing of the definition of robustly protected speech to that which is relevant to democratic deliberation or public interest discourse. The European Court of Human Rights has recognised different levels of speech protection with political speech at the top. Where does this leave protection for “lower forms” of speech? The idea of public interest discourse itself is an amorphous concept, should discussion of the private lives and morals of public figures fall into this category or is that but a fig-leaf for prurient tabloid gossip? The outcome of this discussion in our society could have profound effects on the weighing of competing rights such as privacy and reputation against freedom of expression. An even more controversial aspect to the debate is how far the law can be used to change the media culture in this country. If we focus speech protection on democratic deliberation and away from broader definitions, could the post-Leveson regulatory body for the press, in conjunction with the traditional legal avenues of libel and privacy torts, be used to push the press away from the commercial, circulation fodder of celebrity tittle-tattle toward a culture more akin to public interest discourse? Do we want a press that is so directed, or is it is the wider long term interest of democracy to retain our much vaunted “unruly and irreverent” press even if it oversteps the mark on occasion?

Roy Peled, Columbia Law School / Tel-Aviv University Sunlight Where it’s Needed: The Case for Freedom of Media Information

The Leveson report expresses some disillusionment on behalf of the public at large with the press as a servant of the public interest. While it acknowledges the crucial role of the press in any democratic society, It states that “[t]he existence of a press with such significant power… also has potential to do great harm if not exercised with responsibility” (Vol. I, p. 78). Government accountability, beyond the obvious power of the electorate, is achieved through transparency legislation such as FOIA. The proposed paper makes the argument that similar tools can and should be used to hold the press accountable. The Leveson report suggests “very limited steps” to promote transparency of the relationships between politicians and the press. It also suggests that the board of the proposed regulatory body requires

12 The Virginia Law Review Symposium on Free Speech, October 23rd, 2010 brought together the preeminent First Amendment scholars to discussion this issue. This has been followed up by a series of law journal exchanges. 15

transparency of governance processes and notice of failures in compliance with its code (Executive Summary, p.33). Further transparency measures are also suggested. Freedom of Information laws are now in place in some 90 countries worldwide. They are designed to fight corruption, promote good governance, protect human rights and enable the citizenry to enjoy the power that lies in control of information. Traditionally, Governments are the subject of FOI laws. The proposed papers suggests that some aspects of the press’ operations can and should be subject to similar disclosure obligations. This would allow other news organizations and the public at large to assess the reliability of the information which lays the grounds for any public discourse on any matter of public interest. The service provided by the press to any democratic society is invaluable. There are self-evident, and strong, arguments against any obligatory disclosure rules to be imposed on providers of this service. Some are based on the idea of “freedom of the press”, others on the private nature of commercial press organizations. The paper considers these. It aims to show that freedom of the press as long as it serves the public interest, is unharmed by the proposed disclosure obligations. It also argues that such public-law-like obligations are in place even with commercial news organizations. The public nature of their operations and their impact on public affairs serves as good basis for this. The paper examines these and suggests exceptions to be carved out to ensure no harm will be done to the freedom the press requires in order to provide the invaluable service it provides to society, similar to the exemptions that protect interests of law enforcement agencies in protecting their infromats. It however argues at the same time, that the public interest requires that the press too be brought under wide, yet cautiously tailored, disclosure obligations. Cautiously tailored, and yet robust, disclosure obligations can achieve important advantages attributed to transparency in general. The harm to news organizations would be minimal. A move towards freedom of media information is thus not only morally justified, but indeed warranted. This is a much needed legal reform, the advantages of which significantly outweigh its downsides.

Gill Phillips, Director of Editorial Legal Services, Guardian News and Media Ltd. Constraining Journalism? - Newsgathering and Data Protection

Newsgathering was always a hazardous and complex operation for any media organisation. Increasingly however journalists are being submerged and entangled in a mass of more new and complex law and regulation, much of which criminalises and restricts journalist's conduct and activities. In particular, in addition to the traditional, mostly civil or ethical restrictions on how journalists plied their trade, in recent years there have been a number of statutes that, directly or indirectly, criminalise newsgathering; these combined with a number of Leveson-related developments, are inimical to free speech, pose real risks to journalists and investigative journalism and give serious cause for concern. Traditional restrictions include the law of libel, copyright, contempt, trespass and occasionally, breach of confidence and the (old) s 16 Theft Act 1968 offence of obtaining a pecuniary advantage by deception and, very occasionally, the Official Secrets Act. On an ethical level, the PCC Editors Code has been in existence in various forms since 1991. There have been nearly 30 changes since the original Code was published in January 1991. Although the first Data Protection Act was passed in 1984, and there was an Access to Personal Files Act passed in 1987, this was most ignored by media practitioners as “not relevant” until the 1998 DP Act was passed, implementing the 1995 European Data 16

Protection Directive. Privacy really wasn’t something anyone in the media worried about until the HL decision in Naomi Campbell hit the headlines in 2004. As far as criminalising journalists’ activities are concerned, the following Acts contain the criminal offences most likely to be committed in cases affecting the media, the Computer Misuse Act 1990 ss 1-3, the Protection from Harassment Act 1997 s 2, Malicious Communications Act 1998, section 1, s 55 DPA 1998, RIPA 2000 s 1, Communications Act 2003 section 127, Fraud Act 2006 ss1, the Serious Crimes Act 2007 ss44-46, the Bribery Act 2010 ss 1,2 and 6, a wide range of offences under various Terrorism Acts. In addition, post-Leveson we have: • The Leveson Report itself suggesting a number of changes be made to the DPA • The Leveson Report also suggests a number of changes be made to the protections for journalistic materials that are contained in the 1984 Police and Criminal Evidence Act (Pace). • ACPO has published guidelines on anonymous arrests • In addition there is a consultation going on around Contempt • There is a whole new Coroner’s Court regime coming into effect; • Family courts and media access and reporting are still part of a slow moving but constructive process of discussion; • Reporting criminal courts post the Guardian and Westminster Mags case is another area to watch • The Communications Data Bill

Professor Oreste Pollicino, Associate Professor of Comparative Public Law and Media Law, Bocconi University, Milan Marco Bassini, PhD Candidate in Constitutional and European Law, University of Verona The freedom of information and the right to be forgotten: a harder and harder balance

In the European dimension, the emerging right to oblivion i.e. right to be forgotten represents the evolution from the right to privacy to the right to data protection. Courts of many EU Member States have acknowledged an individuals’ right to have their data deleted and to prevent third parties from using them once such information does not reflect the reality anymore. In the absence of a specific legal reference (even in the Directive 95/46/EC), courts have therefore sought from time to time a balance between the freedom to information and the right to be forgotten. The enforcement of this right has been fostered, particularly, by the rise of the Internet and the evolution of the Information Society services, which have made it more likely for individuals to have their personality rights undermined. Against this scenario, courts have started to take seriously the right to be forgotten and have focused, particularly, on the liability of Internet Service Providers with respect to dissemination of personal data on the Internet. It is therefore of interest to look, in a comparative perspective, at the different ways domestic courts have balanced the societal right to information with individuals right to oblivion in an atypical context as the Internet is, as well as the consequences that resulted from the various approaches in terms of liability of ISP and media. These consequences, in fact, are crucial for the enjoyment of fundamental rights on the Internet, that while on one

hand provides individuals with new opportunities, on the other one brings about problems with enforcement. These themes seem to have triggered the attention of the EU institutions, as the forthcoming implementation of a new regulation on data protection proves. The proposal of regulation issued by the European Commission expressly establishes a right to be forgotten under Article 17, even though this provision allows Member States to provide for exemptions or derogations from this principle for journalistic purposes. Therefore, even in the light of the developments of the EU legal framework, a definite balance between freedom of information and right to be forgotten seems to be far from being achieved. On the other hand, these developments have raised US concerns, as the express implementation of a right to be forgotten, also in the light of the structure of the Internet, would most likely undermine the freedom of expression granted by the First Amendment to the US Constitution. Reactions of US scholars show the different ways freedom of information is approached in the EU and US. While in Europe it is not challenged that freedom of expression may enter into a balance with other fundamental rights, such as the right to oblivion, in the US only a limited group of restrictions may be imposed to freedom of speech. Such an analysis of the potential consequences of the implementation of the right to be forgotten brings to light in all their clarity the problems and issues connected to regulating fundamental rights on the Internet, that constitutes the main research question this study is aimed at addressing.

Professor Colin Scott, University College Dublin Meta-Regulation and the Constitution of the Public Sphere

Britain is held up as an example of the early emergence in the eighteenth century of a public sphere characterised by free and non-hierarchical exchanges on matters of political and social importance, outside the direct control of government. Its elaboration and defence remains a key characteristic of British society, most strongly represented by a free press. Though the public sphere has seen important changes due to the emergence of the new media as a key conduit of opinion and comment, traditional media remains both important and influential. This paper starts from the premise that no sphere of human activity is free from regulation. To acknowledge its special character, because of concerns for the public sphere and freedom of speech, is not to deny that the contemporary media is governed norms set both by state and non-state actors. Regulation of the media sector engages a proliferation of norms, involving a wide range of public and private actors in setting, monitoring and enforcement. Given the significance and scale of norms for the media, and their public and private character, the question of the role of the state in the constitution of the public sphere is not a question of whether but rather how, in what ways and to what extent the state is involved. This paper addresses this question by asserting that it is not inconsistent with the idea of a free media for government to engage in forms of meta-regulation or steering of self- regulatory capacity (both organisational and associational). Where political imperatives require a degree of state engagement it has proved legitimate to seek an appropriate balance between government and self-regulation – not one but both – to address a range of policy problems in which private capacity and autonomy remain important values.

Speker, Adam, Barrister, 5 Raymond Buildings The effect of section 11 of the Defamation Act 2013 on defamation law and practice

Abstract: This paper looks at the likely effect of defamation trials now being heard by judges sitting alone rather than with a jury. Whilst that has become more common in recent years, it has not led to a change in practice. This paper questions whether it will do so. It discusses the role the judge will have in deciding which allegations can properly be said to lower an individual in the eyes of right-thinking people these days and the need to a clearer view of the types of allegations that should be protected, as discussed by Tugendhat J in Thornton v Telegraph Media Group Limited [2011] 1 WLR 1985. It goes on to consider whether the single meaning rule will survive section 11 before considering changes to practice. Those changes include how meaning might now be pleaded; early rulings on meaning are likely to become standard; and how the parties, particularly defendants, are going to have to respond to that change in how litigation is conducted.

Judith Townend, City University London ‘Closed’ data: Obstacles to accessing information about defamation and privacy dispute resolution in England & Wales and the effect on the development of post-Leveson reform

The Coalition Government has prioritised ‘open data’ as a ‘powerful tool’ to ‘empower citizens’, with a ‘transparency commitment’ to publish more crime and anonymised sentencing data and the Ministry of Justice has set out an open data strategy covering both civil and criminal courts. However, legal scholars frequently encounter ‘closed’ rather than open data, when they attempt to access basic information concerning civil cases as part of their research methodology. The reality is that very little is known about the scope and shape of media dispute resolution: our understanding of the legal landscape is reliant on piecemeal disclosure by the parties involved, inconsistent court records, and a handful of data sets released by the Ministry of Justice. More information around dispute resolution would help inform public debates relating to procedural and substantive civil law - for example, the discussion around ‘super injunctions’ and more recently, the development of an arbitral arm as part of a new regulatory system. Based on the author's experience of socio-legal research in this area, this paper will argue that a lack of public data about defamation and privacy litigation and out-of-court settlements - indicated by the Impact Assessment for the Defamation Bill 2012 and the report by the Master of the Rolls’ Committee on Super-Injunctions in 2011 - hampers the policy- making process, public debate and academic research around these issues of public interest. Situated within the theme of ‘Libel and privacy law in the emerging regulatory matrix’, this paper will suggest that a lack of public data about defamation and privacy disputes will be detrimental to post-Leveson reform, especially the development of arbitration mechanisms. Even if Leveson’s recommended arbitration system was not developed, better data would be of benefit to researchers, lawyers and journalists wishing to explore alternative avenues of mediation and early resolution and analyse the implications for freedom of expression and other competing rights and access to justice. One practical suggestion is that legal scholars could collaborate with academics and practitioners from other fields and relevant legal and governmental bodies to develop simple initiatives to open up civil legal data (court listings, court transcripts, ex tempore judgments, court registers, for example), which would be of immediate benefit to policy makers, researchers, lawyers, journalists and litigants, as well as the wider public.

Professor Ian Walden, Institute of Computer and Communications Law On the front line: Lessons from the PCC

The PCC is branded a ‘discredited’ institution, with Leveson providing the cure. If the post- Leveson regulatory framework is to be effective, however, it is necessary to understand the good, the bad and ugly of the PCC and the legal framework within which it operates. This paper will examine the workings of the PCC; decisions applying the Editors’ Code and its relations with the newspaper industry and the general public. Based on extensive research of the PCC since its inception, as well as personal experience, as a Commissioner since December 2009, this paper will provide a unique critique of the PCC as a regulator and tool of media regulation.”

Professor Lorna Woods, City University, London Finding Stuff: Media Plurality in a Digital Age

Typically, discussion regarding media pluralism has focussed on the variety of content available to consume. With the advent of digital technology, however, the issue is not so much about existence but about choice. New intermediaries exist, framing our view of the content that is available, important or desirable: the so-called ‘filter-bubble’. These intermediaries include electronic programme guides, search engines and other portals and apps all of which have the potential to blur the distinction between push and pull content, a boundary on which much of the regulatory regime is based. Using a three-tiered model of pluralism, this paper identifies the challenges facing the viewer/user in an age of plenty and then assesses the current UK/EU framework pertaining to these intermediaries. This article concludes that a perfect system (as matched against the top tier of the pluralism model) is not possible, but that some improvements may be made to the current regulatory position which is outdated or inappropriate and in some aspects technologically specific.

Paul Wragg, University of Leeds Leveson’s Regulator, Editorial Freedom and Press Discussion of Ordinary Members of the Public

The debate surrounding Lord Justice Leveson’s recommendations for press regulation has tended to assume that the creation of his proposed regulator will have an effect on media freedom and media practices and, from this vantage point, have discussed the desirability of such an outcome. This paper, though, seeks to offer a more sceptical view on the effect of Leveson’s proposals on press practices. In particular, it examines its prospective impact on ordinary members of the public (“OMP”, i.e., those that are not high profile public figures) who are the victims of unwanted press attention and asks whether Leveson’s ultimate ambition to achieve a meaningful change in problematic press practices that disregard privacy and dignity is realisable. The paper examines these issues in the context of the recent press coverage concerning Lucy Meadows, a primary school teacher in Accrington who committed suicide amidst critical press treatment about her gender reassignment. This story provides an interesting and provocative lens through which to examine the prospective difficulties that Leveson’s regulator, if installed, would face. Typically, press reports concerning OMPs

involve a public interest dimension (albeit we might debate the extent). Similarly, although it may be the tone, balance and extent of coverage that prompts a complaint to the regulator (i.e., that the extent of the public interest involved is disproportionate to the nature of the report), these may be seen to be matters of editorial freedom. Although, in his report, Leveson is critical of problematic press behaviour affecting OMPs, he is adamant that press partisanship is a vital feature of press freedom. Likewise, the domestic and Strasbourg jurisprudence places particular emphasis on the importance of press partisanship when reporting on matters of public interest. These factors would appear to significantly narrow the scope to penalise the press for engaging either in trenchant criticism or disproportionate reporting about OMPs where a discernible public interest is at stake even though the public interest claim may appear particularly thin. Yet it may be said OMPs require the intervention of the regulator to a greater extent than high profile public figures. OMPs may be more vulnerable to those problematic press tactics of obtaining an interview that Leveson describes – such as cajoling, bullying and intimidation – for want of resources to obtain advice (legal or otherwise) and of less experience of handling the press. Also, they may not complain to the regulator or seek arbitration, even if offered a free service, due to intimidation or fear of provoking further press scrutiny. However, the principles established in the domestic and Strasbourg jurisprudence may constrain Leveson’s regulator to such an extent that a meaningful change to press views on privacy and dignity cannot be achieved where OMPs are at stake.