LEVESON’S ILLIBERAL LEGACY AUTHORS HELEN ANTHONY MIKE HARRIS BREAKING SASHY NATHAN PADRAIG REIDY NEWS FOREWORD BY PROFESSOR TIM LUCKHURST PRESS FREEDOM UNDER ATTACK , LEVESON S ILLIBERAL LEGACY FOREWORD EXECUTIVE SUMMARY 1. WHY IS THE FREE PRESS IMPORTANT? 2. THE LEVESON INQUIRY, REPORT AND RECOMMENDATIONS 2.1 A background to Leveson: previous inquiries and press complaints bodies 2.2 The Leveson Inquiry’s Limits • Skewed analysis • Participatory blind spots 2.3 Arbitration 2.4 Exemplary Damages 2.5 Police whistleblowers and press contact 2.6 Data Protection 2.7 Online Press 2.8 Public Interest 3. THE LEGISLATIVE FRAMEWORK – A LEGAL ANALYSIS 3.1 A rushed and unconstitutional regime 3.2 The use of statute to regulate the press 3.3 The Royal Charter and the Enterprise and Regulatory Reform Act 2013 • The use of a Royal Charter • Reporting to Parliament • Arbitration • Apologies • Fines 3.4 The Crime and Courts Act 2013 • Freedom of expression • ‘Provided for by law’ • ‘Outrageous’ • ‘Relevant publisher’ • Exemplary damages and proportionality • Punitive costs and the chilling effect • Right to a fair trial • Right to not be discriminated against 3.5 The Press Recognition Panel 4. THE WIDER IMPACT 4.1 Self-regulation: the international norm 4.2 International response 4.3 The international impact on press freedom 5. RECOMMENDATIONS 6. CONCLUSION 3 , LEVESON S ILLIBERAL LEGACY 4 , LEVESON S ILLIBERAL LEGACY FOREWORD BY TIM LUCKHURST PRESS FREEDOM: RESTORING BRITAIN’S REPUTATION n January 2014 I felt honour bound to participate in a meeting, the very ‘Our liberty cannot existence of which left me saddened be guarded but by the and ashamed. Convened in a small Iseminar room at the London School of freedom of the press, nor Economics, the gathering was scheduled at the request of the World Association of that be limited without Newspapers (WAN-IFRA) in furtherance danger of losing it.’ of its global mission to defend press freedom, quality journalism and editorial Thomas Jefferson integrity. It was galling that WAN should feel the need to turn its attention to this country, which has done more than any other to prove the value to democracy of a diverse and vigilant free press. 5 , LEVESON S ILLIBERAL LEGACY As those attending took their seats, my thoughts turned to recent cases in which newspapers had held power to account in the public interest. The Guardian’s patient and persistent revelations about phone hacking at the News of the World came to mind instantly; then The Times’ ongoing investigation of ruthless and organised sexual exploitation of children in Rotherham, South Yorkshire; finally the Daily Telegraph’s diligent exposure of abuse by MPs of their parliamentary expense accounts. Each of these stories makes the case for journalism unhindered by prior restraint. Countless examples from British history confirm and reinforce it. This is the country in which William Howard Russell of The Times first demonstrated through his coverage of the Crimean War the power of honest, eyewitness reporting to reveal official incompetence and topple governments as long ago as 1854; it is the land in which W.T. Stead’s Pall Mall Gazette exposed the horrors of child prostitution before the end of the nineteenth century; in which the Yorkshire Post proclaimed the perils of appeasement even as Neville Chamberlain promised ‘peace for our time’. But I was not reassured; I was truly miserable because I understood entirely the WAN delegation’s need to visit Britain for the first time in the organisation’s 110-year history. Since the abolition of press licensing in 1695, Britain’s newspapers had been free from direct oversight by government. Now, following the Leveson Report and The Guardian’s revelations regarding digital surveillance, the threat of press regulation backed by Royal Charter loomed large. It was clear that the WAN representatives could hardly believe it: the Westminster Parliament, which had promoted press freedom as a core democratic principle since the middle of the nineteenth century, was now threatening to restrict editorial independence. The latest manifestation of an unelected cabal that since 1979 has been conspiring to tame the press was supporting them. I listened in dismay as ideological enemies of the newspaper industry zealously sought to persuade the WAN team – including journalists from countries in which repressive regimes routinely suppress and censor honest reporting – that a regulator authorised by Royal Charter was compatible with press freedom. The WAN delegates were plainly appalled. Their report,1 published a few months later, pulled no punches. It concluded that: ‘Self-regulation remains the ideal model for press regulation in that it guarantees the least restrictions to the freedom of the press.’ It warned that the Royal Charter proposal represented ‘a fundamental shift…from the principle of zero involvement of politicians in press regulation’. It raised concerns that 1 WAN-IFRA (2014). Press Freedom in the United Kingdom. Available online at www.wan-ifra.org. 6 , LEVESON S ILLIBERAL LEGACY foreign governments would seek to exploit evidence that Britain was punishing and controlling its newspapers as an excuse to implement similar restrictions with still more repressive consequences. In short, it confirmed, reinforced and amplified the very serious concerns I had raised, before publication of the Leveson Report, in my pamphlet, ‘Responsibility without Power: Lord Justice Leveson’s constitutional dilemma’.2 It emphasised the stark truth that, no matter how ostensibly well intentioned, regulation of the press by any organisation authorised by the state creates the polar opposite of true press freedom. It exposed as profoundly misguided the Hacked Off Campaign’s fantasy that a happy compromise can be found somewhere between self-regulation and statutory regulation. It revealed as deplorably self-serving that campaign’s efforts to imply that the Royal Charter, which Lord Justice Leveson had emphatically not suggested, was in some way less oppressive than regulation by statute, which he had rejected equally emphatically. The WAN delegation’s mere presence in the UK confirmed the decline of this country’s global reputation for press freedom since the publication of the Leveson Report and parliament’s decision to create a Royal Charter on Self-Regulation of the Press. It brought shame on a nation that many journalists struggling against censorship and intimidation had been accustomed to regarding as a beacon of enlightenment. It illustrated the collapse of a long-established political consensus whereby Conservative, Labour and Liberal Democrat politicians alike had understood that a healthy democracy requires a robust, independent, and sometimes unlovable press. It confirmed the wisdom of the Organisation for Security and Cooperation in Europe’s view that: ‘Voluntary self-regulation schemes should be preferred to government-mandated ones’ and ‘state interface of any kind except supporting voluntary agreements’ is ‘entirely wrong’.3 It underlined the virtue of Index on Censorship’s argument that: ‘[A] free press must be just that – free from political interference, including from politicians voting on the establishment of, and characteristics of, a press regulator.’4 LOCAL, REGIONAL AND NATIONAL PAPERS UNITED So, along with sincere defenders of free speech everywhere, I was pleased when not one British newspaper, local, regional or national, agreed to register with a regulatory body approved by the Press Regulation Panel (PRP) which is charged under section 3.1 of the Royal Charter with responsibility to ‘carry on activities relating to the 2 Tim Luckhurst (2012). Responsibility without Power: Lord Justice Leveson’s constitutional dilemma. Bury St. Edmunds: Abramis Academic. 3 LSE Media Blog (2013). OSCE Representative on Freedom of the Media ‘Monitoring’ UK Policy. Available online at http://blogs.lse.ac.uk/mediapolicyproject/2013/05/21/osce-representative-on-freedom-of-the-media- monitoring-uk-policy/ 4 Index on Censorship (2013). Leveson, the Royal Charter and press regulation. Available online at https://www. indexoncensorhip,org/2013/04/index-on-censorship-leveson-royal-charter-and-press-regualtion/ 7 , LEVESON S ILLIBERAL LEGACY recognition of Regulators’.5 The notion is risible that this body, which was created by Parliament, and is funded exclusively by the Exchequer, is in any meaningful sense independent of the state. Its very existence makes clear the extent to which moral panic and hasty judgments over phone hacking made some politicians who sat in Parliament between 2010 and 2015 lose sight of the crucial role a free press plays in challenging power, making government accountable and reinforcing our democratic processes. I was equally pleased when the General Election of 2015 demonstrated that state-endorsed regulation of the press has no popular support. It will, I suspect, be a very long time before another leader of a mainstream British political party presents to the nation a manifesto commitment to implement press regulation underpinned by statute. In the unlikely event that they were to, it would almost certainly breach Article 10 of the European Convention on Human Rights6 which guarantees our freedom ‘to hold opinions and to receive and impart information and ideas without interference by public authority’. A FLAWED INQUIRY Back in 2011, the revelation that Milly Dowler’s telephone had been hacked coincided with a bid for control of British Sky Broadcasting and the expenses scandal to spawn moral panic. The result was the Leveson Inquiry, created in haste and without proper consultation. The inquiry was conducted efficiently and with admirable speed, but it was flawed from conception. Not one of the six assessors appointed by the Prime Minister to advise Lord Justice Leveson had any experience of popular newspapers, the publications that would face the inquiry’s most intense scrutiny. The inquiry devoted only one day to the study of local and regional newspapers, the interests of which are profoundly affected by its recommendations. Critics of the press were granted the privilege of core participant status.