LEVESON’S ILLIBERAL LEGACY

AUTHORS HELEN ANTHONY MIKE HARRIS BREAKING SASHY NATHAN PADRAIG REIDY NEWS

FOREWORD BY PROFESSOR TIM LUCKHURST PRESS FREEDOM UNDER ATTACK

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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

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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.

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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.

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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/

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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. They included the actor Hugh Grant, who would front the Hacked Off Campaign, and the former Formula One president Max Mosley, whose demand for stricter privacy laws had already been rejected by the European Court of Human Rights. Meanwhile, Britain’s most prestigious freedom of expression organisations, English PEN and Index on Censorship had their applications for equivalent status rejected. Only a callous fool would deny that the phone-hacking scandal exposed the obscene depths some journalists plumbed in pursuit of sellable stories. Their actions reminded us that newspapers can deprive people of their rights and liberties as well as speaking truth to power. But to treat the Leveson Inquiry as a reliable foundation upon which to rebuild the relationship between free speech and accountable government that has served Britain admirably throughout the era of universal suffrage would be beyond foolish. And, for a brief moment it looked as if we might escape that fate.

5 Royal Charter on Self-Regulation of the Press (2013). Available online at https://www.gov.uk/government/ uploads/system/uploads/attachment_data/file/254116/Final_Royal_Charter_25_October_2013_clean__Final_.pdf 6 European Convention on Human Rights (1950). Available online at http://www.echr.coe.int/Documents/ Convention_ENG.pdf

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THE DANGER OF COMPLACENCY After publication of the Leveson Report, successful prosecutions for telephone hacking quickly demonstrated the salience of one of the key arguments advanced against his proposals by defenders of press freedom: that virtually all the activities that prompted the inquiry to recommend state-sanctioned regulation of the press were already either actionable or contrary to the criminal law. Hacking was, after all, a criminal offence long before the Leveson Inquiry began. But this evidence was ignored and, after barely token debate, Parliament agreed to impose the Royal Charter. The decision was depicted as diluting to the point of irrelevance any threat of state interference. It was bizarrely and atrociously misguided. Royal Charters are made by the Privy Council. They give Ministers ultimate control. No wonder Liberty condemns the Royal Charter on Self-Regulation of the Press as ‘constitutionally inappropriate, undemocratic, opaque and in no way fit for purpose’.7

While this was going on, newspapers local, regional and national worked to put their own house in order. Nobody now would defend the journalists who had disgraced their profession by accessing the mobile telephone accounts of blameless individuals or the editors who encouraged them. Editors and proprietors redoubled their efforts to ensure that their journalists were familiar with the law. They emphasised the need for ethical journalism based on the Editors’ Code of Practice.8 And, when newspapers responded unanimously to the Royal Charter by refusing to engage with it, all but a tiny minority joined the Independent Press Standards Organisation (IPSO), the genuinely self-regulatory body established under the Chairmanship of Sir Alan Moses, a former Lord Justice of Appeal, ‘to promote and uphold the highest professional standards of journalism in the UK, and to support members of the public in seeking redress where they believe that the Editors’ Code of Practice has been breached’.9 Among those newspapers that have not yet joined IPSO, none has signed up to IMPRESS,10 the sadly misguided project to create a regulator that will seek recognition by the state under the terms of the Royal Charter.

So, it might seem that domestic and international concerns about press freedom in Britain should now be dismissed. Regrettably that would be deplorably complacent. The legacy of Leveson remains potent. Supporters of state regulation remain determined to ignore both the evidence that their position is profoundly misguided, and the opposition of newspapers in every corner of the UK. They deny that their plans would end the British tradition of a free, diverse and vigilant press

7 Liberty (2013). Royal Charter inappropriate mechanism to implement press regulation. Available online at https://www.liberty-human-rights.org.uk/news/press-releases/liberty-royal-charter-inappropriate- mechanism-implement-press-regulation 8 IPSO Editors’ Code of Practice (2014). Available online at https://www.ipso.co.uk/IPSO/cop.html 9 IPSO (2015). About IPSO. Available online at https://www.ipso.co.uk/IPSO/aboutipso/aboutipso.html 10 http://impressproject.org

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capable of speaking truth to power in the public interest. That denial and the arguments it disguises in order to advance the case for state intervention in journalism deserves to be challenged urgently and effectively. Thus the Free Speech Network,11 invited Helen Anthony and a team of researchers from 89up, a public affairs agency which campaigns ‘to make the world a more open, pluralistic democratic place’, to research and write a comprehensive analysis of threats to press freedom posed by the post-Leveson Royal Charter regime. 89up takes its name from the year the Berlin Wall fell and the World Wide Web was created. Each of these events accelerated the march of human freedom. Helen Anthony’s excellent analysis explains why the present campaign for state-sanctioned regulation of the press is dangerously misguided and wrong.

FACING THE FUTURE The analysis makes it plain that, given the circumstances of its birth, we should not be astonished that the Leveson Report resulted in rushed legislation and a substantial increase in threats to journalists from the police, political advisers and the powerful. Examples of these unintended but malign consequences include the police’s Operation Elveden investigations into allegations of inappropriate payments by journalists to public officials. This investigation always looked alarmingly illiberal and liable to persecute reporters for seeking information in the public interest. The police went ahead nevertheless and spent £20million to achieve the conviction of one solitary journalist out of 34 arrested or charged. This egregious waste of public money only ended in April 2015 when the Director of Public Prosecutions, Alison Saunders, announced a dramatic climb-down. Recognising that juries had repeatedly refused to convict journalists, she abandoned the prosecutions of Andy Coulson, former editor of the News of the World, and eight other journalists.12 Those against whom charges were dropped complained of appalling persecution and condemned Elveden as an atrocious assault on public-interest journalism.

Now, for all who care about press freedom in this country, conditions may be about to get even worse. The last Parliament left on the statute book or in the Royal Charter a set of punitive measures, all of which may soon be deployed against newspapers. Together they would breach human rights and impose the most severe restrictions on press freedom in the United Kingdom since the abolition of stamp duty on newspapers in 1855 made print journalism affordable to all. They would damage in particular the popular national daily newspapers from

11 http://freespeechnetwork.org.uk/ 12 Guardian (2015). Operation Elveden: Andy Coulson and eight other cases dropped by DPP. Available online at http://www.theguardian.com/uk-news/2015/apr/17/operation-elveden-andy-coulson-cases- dropped-dpp

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which most Britons choose to receive news and entertainment and the dedicated local titles that provide such excellent service to communities throughout the land. These threats include:

That the Royal Charter will impose a punitive system of exemplary damages and costs shifting against newspapers that choose to remain 1free of supervision by the state. That restriction on contact between police officers and journalists may damage public interest journalism and endanger the 2administration of justice. That Leveson’s proposals regarding data protection will offer the rich and powerful new ways to obstruct and prevent investigation of 3their affairs. That Leveson’s failure to consider the consequences of the internet for professional journalism may permit scurrilous internet 4publication while severely restricting newspapers’ ability to report in the public interest.

AN IMPORTANT ANALYSIS This sober and detailed work explores these issues expertly. It offers arguments both reasoned and principled against measures that present a grave threat to the British tradition of free speech. Crucially, it also offers clear and practical recommendations to protect our liberties and restore Britain’s status as a beacon of press freedom and a showcase for its umbilical link to representative democracy.

Central to this critique of the ad hoc and repressive system of press regulation that has emerged since publication of the Leveson Report are the provisions contained in Sections 32 to 42 of the Crime and Courts Act 2013 dealing with exemplary damages and costs. These introduce the thoroughly unpalatable notion that a newspaper may face punitive damages and onerous costs in a civil case, not because of any uniquely malicious wrong it has inflicted, but because it has chosen to remain outside a regulator that is recognised under the Royal Charter. Eminent QCs warn that the exercise of these provisions would be likely to breach Article 10 of the ECHR. The dire possibility arises that newspapers - and struggling local titles in particular – may be driven out of business for daring to remain loyal to the internationally cherished principle that a newspaper should not submit to regulation by a body approved or licensed by the state.

In attempting to implement Lord Justice Leveson’s recommendation that exemplary damages should be available against news publishers ‘in actions for breach of privacy, breach of confidence and similar

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media torts as well as for libel and slander’,13 the Crime and Courts Act risks embarrassing this country royally. It menaces newspapers with a form of collective punishment for daring to insist upon the independence that allows their readers to trust them. It subjects them to rules expressly intended to impose requirements above and beyond those required by law. By creating an assumption that a publisher threatened with court proceedings will have to pay the other side’s costs as well as its own, it will, inevitably, create a chilling effect. Newspapers will refrain from publishing challenging stories in the public interest for fear that they will face expensive consequences. That concern will be exacerbated by a truly novel and pernicious innovation: the Act decrees that a newspaper can be required to meet the claimant’s costs even when the claimant has lost. The spectre looms of blameless, public-spirited local newspapers bankrupted because they have reported harsh truths.

Plainly the relevant sections can and should be repealed. They have no place in a modern democracy. Nor do restrictions on everyday contacts between police officers and reporters of the type Leveson recommended. Good, trusting relations between newspapers and police forces have, in the past, assisted greatly in detection of crime and protection of the public. Stories produced by such relationships have assisted the judicial system by encouraging witnesses to come forward. Close understanding between reporters and police contacts have given whistleblowers the confidence to reveal incidents of wrongdoing inside the police force.

This report identifies another intensely troubling legacy of Leveson’s proposal: his recommendation that the exemption journalism has enjoyed under the Data Protection Act (DPA) should be narrowed. When Parliament passed the DPA in 1998 its clear intention was that the pursuit of honest reporting by journalists should not be imperilled. Although his recommendation has not so far been acted on, litigants have already started to deploy Data Protection Law as an alternative to the new libel legislation in force in England and Wales. Journalists fought long and hard for libel reform. It would be depressing in the extreme to see a small gain in one area of the civil law eradicated by the weakening of journalistic defences in another. We should not rush to trade London’s reputation as libel capital of the world for new notoriety as a city where the very rich can exploit data protection law to shield them from scrutiny.

Much has already been written about Leveson’s reluctance to address the challenge of the internet. My own submission to his inquiry, Missing the Target and Spurning the Prize,14 exposed the eccentricity of

13 Leveson Report (2012). Vol. IV, p. 1512, para. 5.12 14 Tim Luckhurst (2012). Missing the Target and Spurning the Prize. Available online at http://webarchive. nationalarchives.gov.uk/20140122145147/http:/www.levesoninquiry.org.uk/wp-content/uploads/2012/02/ Submission-by-Professor-Tim-Luckhurst.pdf

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addressing ethics in modern newsrooms without fully considering the economic impact of online and social media. This analysis reinforces this crucially important argument. The power and reach of the internet will define the character of journalism in the twenty-first century. To give it so little thought revealed a lacuna in Leveson’s approach and in the last Parliament’s response.

Within the expert scrutiny of this work a central truth about that response emerges. The only voice that was widely heard on the subject of press regulation between 2012 and 2015 was that of an impressively well-organised but unrepresentative lobby. Hacked Off is their latest flag of convenience. It hides carefully the inconvenient reality that many of its most determined supporters have long been hostile to the privately-owned, popular newspapers most readers choose to read. Their spiritual homes include the Campaign for Press and Broadcasting Freedom (CPBF) and the Media Reform Coalition. The CPBF was founded in 1979 to demand reform and regulation of newspaper ownership. Initially funded principally by trade unions,15 it has long made clear its hostility to a genuinely free market in newspapers. Its prejudices were set out unambiguously in its response to the last Labour Government’s proposals for communications policy. These were ‘one-sided’ the CPBF explained, because they favoured ‘competition and markets as central policy tools’ which are ‘incompatible with the provision of high quality accountable media’16. Such thinking is prevalent among activists whose true ambition is to rescue newspapers and their readers from the perils of real freedom. Behind its meticulously polished veneer of celebrity populism, Hacked Off is full of such people. Some of its activists sympathise with the Media Reform Coalition, which proudly proclaims the support of Jeremy Corbyn. Together, these organisations published a hard-line ‘Manifesto for Media Reform’ during the general election.17 The truth about Hacked Off is that it has achieved real success not because its arguments are incontrovertible, but because it hides its true politics and campaigns more effectively than any of these failed allies from which it draws friends and supporters.

Such campaigns were dismissed as eccentric and misguided by every parliament since 1945. A commitment to press freedom was shared by the majority in all parties along with a wry but mature recognition that, while free newspapers are raucous and uncomfortable friends, they are always and infinitely preferable to the alternative. I fear the last Parliament lost sight of that basic democratic principle, one that is enshrined in the first amendment to the Constitution of the United

15 See James Curran and Jean Seaton (2010) Power without Responsibility 7th Edition, Routledge, p. 339 16 See James Watson (2008) Media Communication, Palgrave Macmillan, p 367 17 Media Reform Coalition (2015). Manifesto for Media Reform. Available online at http://www. mediareform.org.uk/wp-content/uploads/2014/12/2517_CPBF_MRC-nov14b.pdf

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States, Article 19 of the Universal Declaration of Human Rights and Article 10 of the European Convention. I pray that this Parliament will erect comparable protection for freedom of expression throughout the United Kingdom, whether through amendment of the Human Rights Act or a new British Bill of Rights compatible with the ECHR.

With that admirable objective in mind, I recommend this excellent report to all who agree with Benjamin Franklin that liberty is impossible without a truly free press and with George Orwell that, if the term has any meaning, ‘it means the right to tell people what they do not want to hear’.18 It will be clear from any fair-minded assessment of what follows that Helen Anthony and her team represent no narrow ideological perspective. Rather their arguments form part of a consensus for liberty, which, in the course of the last century, united every variety of democratic opinion from Clement Attlee’s Labour Party to Margaret Thatcher’s Conservatives. In recommending their work, my plea to our new parliament is passionate and sincere. I want to see that consensus restored and to give the World Association of Newspapers no new incentive to scrutinize Britain as if it were a struggling post-Soviet republic. Sadly, such an incentive is looming enormous.

Even as I write, the Press Regulation Panel (PRP),19 the body created under the Royal Charter to ‘receive and determine applications for recognition from independent press-regulators’ stands poised to extend the grip of state-sanctioned regulation. It has existed, at public expense, since 3 November 2014. It has a website, policies and a budget of £3 million. It feels the need to answer, on its own website, the question: ‘How is the PRP an independent body, when you receive Government funding?’20 Its response relies too heavily on assertion. The Independent Press Standards Organisation will never apply for recognition. It shares the common-sense view that, no matter how earnestly the PRP professes independence from Government it remains, and can only ever be, a body created by Royal Charter at the instigation of Parliament and Government and funded by HM Treasury. But despite the stand-off the PRP presents a real threat. Simply by being in existence for a year and day it triggers exemplary damages, which come into effect on 3 November 2015. If IMPRESS applies for recognition, as it says it will, and if it can find a publisher to regulate, the second trap laid under the post-Leveson regime will also snap shut the minute the necessary ministerial order is signed. Our newspapers will not only face punitive exemplary damages, but an equally punitive regime under which they can be forced to pay the other side’s costs in a libel action, win or lose.

18 George Orwell (1945). ‘The Freedom of the Press’, a proposed introduction to Animal Farm. First published in The Times Literary Supplement, September 15, 1972 19 http://pressrecognitionpanel.org.uk/ 20 http://pressrecognitionpanel.org.uk/about-the-prps-staff-and-budget/

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IMMINENT DANGER: THE EFFECT ON LOCAL NEWSPAPERS Walter Merricks, Chairman of Impress, acknowledges this danger. Merricks, a lawyer and former financial ombudsman with no experience in newspaper or broadcast journalism, writes that: ‘Publishers which do not join a recognised regulator may be obliged to pay the legal costs of those who sue them for libel or breach of privacy. Conversely, publishers which belong to a recognised regulator will be protected against these costs.’21 For Impress this is a question of fairness. But this report explains why a system in which newspapers are treated more harshly by the law, not because of any flaw in their reporting, but because they have chosen to continue operating without state- sanctioned regulation, constitutes a form of discrimination that is likely to breach Articles 10 and 14 of the ECHR.

The future of Britain’s free press is at stake and, as the WAN mission with which I began this foreword amply confirms, we can ill-afford the parochial, narrow-nationalist prejudice that its fate matters only here in the UK. Britain’s newspaper industry sets an example that is watched closely around the world. We owe it to those struggling to achieve freedom of expression not to set an example that will undermine their efforts. Newspapers may, of course, defend themselves in the courts, but that would be hugely expensive. And, among the biggest lies told in recent years is that all newspapers are rich and their critics poor. In truth the economic impact of the internet has left many of our most admired titles in dire financial straits. This applies in particular to local newspapers and their websites, which often provide the only independent scrutiny of public affairs in their communities. To burden them with the expense of challenges under the ECHR would be utterly unreasonable.

So, please set aside any lingering delusion that the post-Leveson debate is a confrontation between sincere reformers and rich, selfish vested interests. That misrepresentation was always cynical. Today it serves only those who would exploit the victims of phone hacking to promote a narrow ideology. Since Leveson, Britain has taken a step away from the principles and traditions by which every generation since the reign of Queen Victoria understood the symbiotic relationship between press freedom and the Westminster model of democracy. That step can be reversed. Helen Anthony and 89up explain why it must be reversed immediately.

Professor Tim Luckhurst University of Kent August 2015

21 Walter Merricks (2015). Why Impress is Seeking Regulation as an Independent Press Regulator. Available online at http://blogs.lse.ac.uk/mediapolicyproject/2015/05/21/why-impress-is-seeking- recognition-as-an-independent-press-regulator/

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LEVESON’S ILLIBERAL LEGACY EXECUTIVE SUMMARY The fallout from the Leveson Inquiry and report has left the British press facing the most substantial threat to its freedom in the modern era.

Legislation establishing co-regulation of the press, with coercive legal measures, could seriously chill our news media. Co-regulation is unusual and has been condemned by international bodies when introduced in other countries.

The punitive costs measures introduced in post-Leveson legislation are likely to breach the European Convention on Human Rights and international norms.

As this report sets out, such a legal regime could have prevented the publication of stories vital to the public interest, such as the MPs expenses scandal.

Press freedom in the UK has developed over several hundred years. Since the abolition of the Licensing Act in 1695, Britain has not had a statute specifically aimed at controlling the content of the press, above and beyond laws that apply to everyone, such as defamation.

Since the post-war Labour government, successive administrations have commissioned inquiries into the press, for a variety of reasons, from perceived bias, to ownership and funding.

The Leveson Inquiry was announced in 2011, in response to a public outcry about phone hacking. It was to be a two-part inquiry into the role of the press and the police in the phone hacking scandal. Part one of the inquiry considered the culture, practice and ethics of the press, but legal constraints relating to ongoing police investigations prevented extensive consideration of the very issue that prompted the inquiry.

The focus went far beyond phone hacking, with a whole range of lobbying groups pressing the inquiry to consider topics that were only very distantly related (if at all) to the issue at hand.

Part two of the inquiry, which was due to look specifically at the issue of phone hacking and payments to police, has not happened, and may never do so.

The Leveson Inquiry made a number of recommendations which have implications for the free press. These include the restriction of everyday contact between the press and police officers; changes to the law

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making it more difficult for journalists to protect their material and keep their sources confidential; and narrowing the data protection exemption for journalists.

Lord Justice Leveson also made a series of recommendations for press regulation.

Some of these were incorporated into a proposed regulatory system, which involves a panel established and funded by the state officially recognising regulators which meet conditions set out in a Royal Charter, as well as legislation which rewards publishers for signing up to the recognised regulator and penalises those who do not.

In addition, the recognised regulator will have to offer an arbitration service which is free to complainants. This may not always be an appropriate way of resolving a dispute and will be a costly process that small and medium-sized publishers can ill afford.

The Royal Charter and associated legislation in the Crime and Courts Act and the Enterprise and Regulatory Reform Act were barely debated by Parliament. Just 13 hours of parliamentary time was devoted to debate on the issue of press regulation. Legislation was shoe-horned into unrelated bills which were already close to being passed. The Royal Charter itself was introduced by ministers through the Privy Council.

The post-Leveson regime is likely to breach human rights legislation, specifically Articles 6, 10, and 14 of the European Convention on Human Rights (ECHR). It restricts access to the courts, by virtually compelling the use of arbitration and making it unaffordable for newspaper publishers which have not signed up to a recognised regulator to defend a claim; it restricts the right of the press to freedom of expression by making it prohibitively expensive to stay independent outside a recognised regulator; and it discriminates between certain types of publisher (including the mainstream printed press) and others in the application of these rights.

Self-regulation of the printed press is a principle asserted by international human rights bodies and NGOs. The UK’s use of statute in regulating the press breaches international human rights standards. The impact of one of the world’s leading democracies abandoning self-regulation for the printed press with little parliamentary debate has already been felt globally.

In November 2015, legislation aimed at regulating the press will come into effect, and the Press Recognition Panel has already announced it is ready to consider applications from organisations - possibly without any members - hoping to become Royal Charter- approved regulators. It is now vitally urgent that press freedom is defended.

The relevant sections of the Crime and Courts Act must be repealed, and the Royal Charter annulled. Furthermore, public interest defences should be introduced across the rangeof legislation that can affect journalists, and protection of sources must be strengthened.

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CHAPTER 1.

WHY IS THE FREE PRESS IMPORTANT? This chapter explores the history and development of the free press in the UK and explains why a free press is fundamental to an open and pluralistic democracy.

Press freedom is the hallmark of a civilised society and a guarantor of democracy. But, much as democracy itself, it is often taken for granted and seen as a natural state, rather than a product of concerted struggle.

Now, for the first time in centuries, we are faced with a substantial step backwards, with legislation introduced in statute specifically aimed at curbing the press.

Over more than 300 years, freedom of the press in England and Wales has advanced in fits and starts. The UK does not have an American-style constitutional commitment to it, but freedom to print what one wishes, and to read what one likes, has been an aspiration since the time of Caxton.

The journey towards a free press in Britain began in 1695, when the Licensing Act (the ‘Act for Preventing the frequent Abuses in Printing Seditious, Treasonable and Unlicensed Books and Pamphlets; and for the Regulating of Printing and Printing Presses’) was left unrenewed. The Act, in place since 1662, was squarely aimed at controlling what came off the presses. Its disappearance led to the modern newspaper industry as we know it, with dozens of journals and papers emerging across the country.

This abundance was quelled by the 1712 Stamp Act, which levied a tax on each copy of a newspaper, putting news beyond the reach of many. It was no coincidence that the Act appeared at a time when papers and pamphlets critical of the status quo were flourishing. In a letter dated 7 August 1712, barely a week after the act came into force, Jonathan Swift complained:

‘Do you know that Grub Street is dead and gone last week? No more ghosts or murders now for love or money. I plied it pretty close the last fortnight, and published at least seven penny papers of my own, besides some of other people’s: but now every single half-sheet pays a halfpenny to the Queen. The Observator is fallen; the Medleys are jumbled together with the Flying Post; the Examiner is deadly sick; the Spectator keeps up, and doubles its price; I know not how long it will hold.’

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Successive governments steadily increased the stamp duty, with the unintended effect of creating a thriving underground press. Publishers who refused to pay the stamp duty and pass the price on to their readers would transport their papers covertly – sometimes in coffins, which the authorities would be reluctant to search. The duty was abolished in 1855. One advertiser in the Manchester Guardian published a celebratory poem, capturing the mood of the time:

‘Today the press, from duty free Appears on every side; Whilst competition spreads around And news is scattered wide. A perfect flood of papers rise Like breakers in the storm Of every size – at every price And every make and form.’

While the lifting of the duty did indeed encourage a profusion of new publications, it did not bring a free-for-all: laws such as seditious libel continued to constrain the press. Moreover, proprietors and editors of large circulation papers remained conservative and timid.

It would take the launch of the Daily Mail in 1896, and the Daily Express in 1900, for the British popular press as we understand it today to take form.

The rise of the popular press coincided with a period of upheaval in Britain. The emergence of the Suffragettes and the labour movement, combined with the social effects of the First World War marked the beginning of the end of the deference of the Victorian Age.

The Daily Mail played a crucial role in the Great War, delivering 10,000 copies to the front every day, and introducing the Soldier’s Friend column, for the first time giving a voice to those doing the fighting.

Though fiercely patriotic in its coverage, the Mail was not afraid to criticise the authorities’ conduct of the war, particularly when it came to the equipment given to soldiers.

Daily Mail proprietor Lord Northcliffe bridled against military censorship: the issue came to a head in 1915 with the ‘Shell Crisis’, when the Mail and the Times attacked the government and military for its failure to supply adequate and appropriate ammunition for the war effort.

The papers’ criticism of Lord Kitchener in particular shocked the establishment, and copies of the Daily Mail were burned in the City of

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London. But the Mail’s criticism was ultimately vindicated: failings were admitted and a new ministry of munitions was set up under David Lloyd-George. The ability of the free popular press to effect change was now established.

Although deference increasingly loosened its grip after the First World War, the authorities still felt the occasional impulse to curb the free press. In 1942, the Daily Mirror faced the wrath of Herbert Morrison, then Home Secretary in the wartime coalition, for its criticism of the conduct of the war. The communist newspaper The Daily Worker had been banned by Morrison in 1941, and many feared the Daily Mirror would be next.

Michael Foot, then editor of the Evening Standard, rushed to the defence of the Mirror with a stirring and resonant speech, warning that censorship of a popular paper would be a disaster akin to appeasement:

‘The liberty of the press in this country can only be maintained by the vigilance of the people and the vigilance of the Parliament and the courage of the newspapers themselves. That’s the only way. Therefore we must fight, fight, fight to retain those liberties. The ministers come along to tell us that, of course, it’s only the Daily Mirror they were trying to get at. The attack is over, they say. No other demands on any other newspapers. All other newspapers may continue to live in tranquillity and in freedom and in peace. There’s something rather familiar about those words. “I have no more territorial demands”.’

After the defeat of Hitler, the Labour party won a decisive election victory. Incensed by what it saw as a pro-Conservative bias among the newspapers, it set up the first Royal Commission into the press, ‘with the object of furthering the free expression of opinion through the Press and the greatest practicable accuracy in the presentation of news, to inquire into the control, management and ownership of the newspaper and periodical Press and the news agencies, including the financial structure and the monopolistic tendencies in control, and to make recommendations thereon.’

George Orwell sensed a danger that the commission could lead to government interference in the press. Writing in Tribune in 1946, he noted that:

‘What matters is that in England we do possess juridical liberty of the press, which makes it possible to utter one’s true opinions fearlessly in papers of comparatively small circulation. It is vitally important to hang on to that.’

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The Royal Commission sat from 1947 to 1949, finally recommending self-regulation for the press in 1953. Subsequent Royal Commissions in 1961 - 1962 and 1974 - 1977 suggested improvements to self-regulation, but did not at any point suggest new statutes aimed at the press. In the late 80s, the newspapers’ focus on sleaze reignited political calls for regulation. Conservative MP Jonathan Aitken summed up the mood, saying: ‘There is a cancer gnawing at the heart of the British press. At the lower end of the tabloid market, journalism has been replaced by voyeurism. The reporters’ profession has been infiltrated by a seedy stream of rent boys, pimps, bimbos, spurned lovers, smear artists bearing grudges, prostitutes and perjurers. That is the force that makes constituents say to members of Parliament: “Get on and do something about it”.’

That ‘something’ was the Calcutt Report of 1991, which led to the creation of the Press Complaints Commission. Aitken was soon after found to have perjured himself in a libel action against a newspaper which had made allegations of sleaze against him.

The story of press freedom in the UK has been one of gradual advances, and steps further and further away from state interference. Centuries of progress and principle were halted in the fallout from the Leveson Inquiry and Report, with punitive legislation rushed through parliament with inadequate consultation, via the archaic instrument of the Royal Charter.

The press will only be free of controversy and contention if it is muted and impotent. That would be the effect of punitive post-Leveson laws, designed to make editors think twice about taking risks to bring their readers the story they want, and deserve, to read. This would be a contravention of the rights and duties of the free press as summed up in a European ruling on the Spycatcher case of 1991: ‘Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog”.22

As we have seen, newspapers provide a vital service. Their coverage of local and regional issues provides the foundation upon which other media build their stories. It is newspapers, free from state interference and regulation, and free to editorialise and campaign, that are best able to hold power to account.

According to the most recent Office of National Statistics records, 60,000 people work as ‘Journalists, newspaper and periodical editors’, in the United Kingdom, the majority for newspapers.

22 Observer and Guardian v. The UK, Application no. 13585/88, Judgment 26 November 1991, European Court of Human Rights

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But no one can deny that the industry is under strain. Local newspapers in particular – so often the only means of holding town halls to account – face enormous commercial pressure. The Press Gazette records that between 2005 and 2012, 242 stopped their presses. The very last thing the nation’s remaining newspapers need is a state-mandated regulatory system that could close them down – even if they do manage to survive the upheavals of a changing media world.

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CHAPTER 2.

THE LEVESON INQUIRY, REPORT AND RECOMMENDATIONS Nearly three years on since the Leveson Inquiry, this chapter considers its background and processes, and looks at some of its key recommendations which present a threat to freedom of expression.

2.1 A BACKGROUND TO LEVESON: PREVIOUS INDEPENDENT INQUIRIES AND PRESS COMPLAINTS BODIES In the post-war period, since the first Royal Commission on the press was instigated by the Attlee government, self-regulation has been held as the norm in the UK. That first Royal Commission led to the creation of the General Council of the Press in 1953. This was the first print industry self-regulatory body tasked with maintaining ethical standards.

A further inquiry into press regulation in 1961 led to the establishment of the Press Council, which focused more on complaints-handling. Its membership panel included 20 per cent lay members, including its chairman, the judge Lord Devlin. In 1974-1977, the third Royal Commission on the Press proposed twelve reforms, including the creation of a code of conduct but stopped short, once again, of recommending statutory powers for enforcement of sanctions.

The first Calcutt Committee, chaired by Sir David Calcutt QC, of 1989-1990 led to the creation of the Press Complaints Commission underpinned by a new code of practice.

The second formulation of the committee reviewed the PCC’s performance after 18 months and produced a report in 1993. The government rejected the recommendation that a statutory Press Complaints Tribunal be set up in 1995.

More recently, the Culture Media and Sport select committee (2010) and the Joint Committee on Privacy (2012) also expressed support for self-regulation, stating: ‘We remain of the view that self-regulation of the press is greatly preferable to statutory regulation, and should continue.’23

This changed when Lord Justice Leveson’s recommendations for statutory underpinning of a self-regulatory system were accepted by the government. The industry’s reaction also changed: while maintaining

23 Press standards, privacy and libel - Culture, Media and Sport Committee: Self Regulation of the Press http://www.publications.parliament.uk/pa/cm200910/cmselect/cmcumeds/362/36209.htm

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the need for the independence of press from politicians, much of the popular press joined a regulator called the Independent Press Standards Organisation (IPSO). IPSO administers the Editors’ Code of Practice and handles complaints from the public including issues such as accuracy, invasion of privacy, intrusion into grief or shock, and harassment.24

THE CAMPAIGN FOR LEVESON In July 2011, it was reported that the mobile phone of Milly Dowler, a teenager murdered in 2002, had been hacked while police were searching for her. It was also claimed that messages on her phone had been deleted by hackers working for the News Of The World (NOTW) newspaper, though that assertion was withdrawn later.25 The report came as evidence mounted of the practice of phone hacking at the paper. It was claimed up to 3,000 people had their messages secretly accessed by journalists and private investigators working for the NOTW.

On 13 July 2011, with political pressure heightened by the presence of a former NOTW editor Andy Coulson as the Prime Minister’s director of communications, David Cameron announced the details of an independent inquiry to be led by Lord Justice Leveson, which, he told parliament, had ‘two pieces of work’ to do: ‘First: a full investigation into wrongdoing in the press and the police... Second: a review of regulation of the press.’

The Hacked Off campaign formed soon after the practice of phone- hacking was revealed and lobbied on behalf of the victims, calling for26 a judge-led statutory inquiry.

However, the Leveson Report that resulted went far beyond both this remit and what campaigners had initially demanded. Professor Brian Cathcart, founder of Hacked Off (which now campaigns for the implementation of the Royal Charter and statutory underpinning), made no mention of an inquiry addressing regulation, when he said on 15 July that Hacked Off’s objective was only ‘to secure a public inquiry into the [phone-hacking] scandal’.27 On 4 July, Cathcart wrote that an inquiry was urgently required ‘because in recent weeks there has been every sign that without one the scandal will be killed off by the year’s end. The civil litigants – the victims of hacking who have sued – are settling, one by one’.

24 IPSO website https://www.ipso.co.uk/IPSO/aboutipso/aboutipso.html 25 “Glenn Mulcaire never deleted Milly Dowler’s voicemail”(4 November 2013) http://www.pressgazette. co.uk/glenn-mulcaire-never-deleted-milly-dowlers-voice-mail-court-told 26 Hacked Off Campaign calls for strong terms of reference for judge-led inquiry (12 July 2011) http:// hackinginquiry.wordpress.com/2011/07/12/hacked-off-campaign-calls-for-strong-terms-of-reference-for- judge-led-inquiry/ 27 Brian Cathcart, Hacked Off: The Story So Far, Free Speech Blog (15 July 2011) http://blog. indexoncensorship.org/2011/07/15/hacked-off-the-story-so-far/

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2.2 THE LEVESON INQUIRY’S LIMITS: SKEWED ANALYSIS The risk of prejudicing criminal proceedings arising from Operation Weeting28 (phone hacking), Operation Elveden29 (payments to officials) and Operation Tuleta30 (computer hacking) meant that examination of the detail of the phone-hacking scandal was limited. Lord Justice Leveson acknowledged this when questioned at the House of Lords, saying: ‘It might be thought it was the elephant in the room, but we were able to do sufficient around the subject to know what was going on without having to deal with the issue of self- incrimination.’31

The political pressure on the government to be seen to be doing something outweighed these legal constraints, and the inquiry went ahead.

As former tabloid editor Paul Connew has noted, the inquiry itself soon became the ‘hottest ticket in town’32 with a whole range of lobbying and representative groups demanding to address issues that were only tangentially related to what sparked the crisis.

It is arguable that, as a result, questions that might otherwise have been viewed as incidental to the inquiry’s remit were given heightened priority. For example, the issue of the entirely legal publication of pictures of ‘page 3 girls’ by the Sun and the Daily Star took up a full half day,33 in spite of the fact that there was little likelihood of Lord Justice Leveson making a recommendation on it.

Lord Justice Leveson has told the Commons Culture, Media and Sport Committee that he does not know if part two of his inquiry, dealing with specific press and police wrongdoing related to telephone and computer hacking, will ever take place. This would be a surprising development, given the initial impetus for the inquiry.

PARTICIPATORY BLIND SPOTS Lord Justice Leveson limited the number and nature of core participants to ensure the inquiry dealt with a manageable number of issues. It is questionable whether this selection, while seeking to be independent, was balanced and fairly represented the breadth of expertise and opinions around the complex issue of free speech in the UK.

28 Operation Weeting..Criminal proceedings arising from Operation Weeting have led to six convictions out of 18 charges http://www.cps.gov.uk/news/latest_news/op_weeting_-_cps_decision/ 29 Operation Elveden. At present, criminal proceedings arising from Operation Eleveden have only led to the conviction of one journalist out of 34 arrested or charged. There are ongoing proceedings against three journalists, and 21 out of 28 public officials prosecuted have been convicted of a variety of offences. http:// www.cps.gov.uk/news/latest_news/crown_prosecution_service_re_review_of_operation_elveden/ 30 Operation Tuleta http://blog.cps.gov.uk/2014/08/cps-statement-one-individual-cautioned-for-an-offence- and-no-further-action-against-another-individu.html 31 p.264, Select Commiittees on the Inquiries Act 2005: written and corrected oral evidence http://www. parliament.uk/documents/lords-committees/Inquiries-Act-2005/IA_Written_Oral_evidencevol.pdf 32 Paul Connew, Confessions of a Recovering Tabloid Hack, After Leveson, Abramis (2013) 33 Para 8.9, ibid.

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The Leveson Inquiry’s assessors were chosen so they could create a panel that was independent of the press, rather than a panel that could independently assess regulation of the press. In hindsight this has undermined the credibility of the Leveson recommendations. For example, one of the Prime Minister’s appointed independent assessors, Sir David Bell, was chair of the Media Standards Trust.34 Hacked Off was originally founded as part of the Trust, only becoming independent a year later.35

There also remains concern over undue influences on the inquiry’s terms of reference. Hacked Off exerted a significant influence both over the inquiry and subsequently over the legislation rushed through Parliament. Hacked Off campaigner Hugh Grant boasted in his introduction to Brian Cathcart’s book about the project that Hacked Off helped to write the terms of reference to the inquiry.

A number of individuals whose phones were not hacked were granted core participant status, including Max Mosley, who was closely associated to the Hacked Off agenda (although he denied being part of the group).36 Mr Mosley had previously failed in his attempt to persuade the European Court of Human Rights that it was a breach of his right to privacy that he was not notified before a newspaper published a story about his private life. At the Leveson Inquiry, despite his lack of legal expertise, he was given the opportunity37 to advocate restrictions based on arguments that the European Court had already rejected.

In contrast, some of the UK’s leading freedom of expression organisations, English PEN38 and Index on Censorship39 were not granted core participant status. It is unclear why civil society bodies and non-governmental organisations that spent an extraordinary amount of time dedicated to national and international issues of free speech and media freedom were considered of less relevance than a wealthy and polarised litigant such as Max Mosley. It is arguable that this lack of input meant the report’s findings failed to acknowledge the importance of the right to freedom of expression.

The Inquiry devoted only half a day to magazine editors, and just one day to hearing from local and regional newspapers, despite the fact local and regional titles make up 35-40 per cent of the entire newspaper industry.

34 Media Standards Trust website http://mediastandardstrust.org/about/people/ 35 Now an independent entity – http://mediastandardstrust.org/projects/hacked-off/ 36 House of Commons Culture, Media, and Sport Committee Oral Evidence from Regulation of the Press hearing on Tuesday, 19 March 2013http://www.publications.parliament.uk/pa/cm201213/cmselect/ cmcumeds/uc819-iii/uc81901.htm 37 Max Mosely’s witness statement at the Leveson Inquiry http://webarchive.nationalarchives.gov. uk/20140122145147/http:/www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of- Max-Mosley.pdf 38 English Pen website http://www.englishpen.org/ 39 Index on Censorship website https://www.indexoncensorship.org/

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Evidence was only heard from the editors of the Yorkshire Post, the Irish News, the South Wales Evening Post, the Belfast Telegraph, the Manchester Evening News, the Scotsman and the Ipswich Evening Star.

Lord Justice Leveson wrote that ‘the regulatory model proposed should not provide an added burden to the regional and local press.’40 However, this ambition was not reflected in his recommendations or in the subsequent debate. Coventry University’s Paul Marsden has commented that ‘legislating against local titles is akin to punishing every corner shop in Britain for the misbehaviour of Tesco’.41

Local and regional newspapers benefited from the PCC’s voluntary regulation and dispute resolution. The costs and exemplary damages regime proposed by Leveson (as explored in Chapter 3) could severely damage journalism whose role in scrutinising local government is under considerable financial strain.

There was also a distinct lack of evidence from newer online news providers such as the Huffington Post, which now account for a large and growing proportion of readership. This blind spot was especially marked given the pace at which online platforms are developing and the importance they have in young people’s news reading habits (see 2.7).

2.3 ARBITRATION The Leveson recommendations (and subsequent legislation in the Crime and Courts Act explored in Chapter 3) introduced the potential of exemplary damages and punitive cost shifting against organisations that do not use arbitration provided by the state-recognised regulator. Although arbitration can be useful in some cases, it may not be appropriate in all; furthermore, forcing parties to use arbitration is contrary to article 6 ECHR (the right to a fair trial). The inquiry did not give due consideration to alternative methods of dispute resolution.

Leveson’s main rationale for arbitration was that it offered greater access to justice for potential claimants by creating a means of pursuing claims that would be cheaper than the courts. The only anticipated costs the claimant could be ordered to pay would be the arbitrator’s fees in cases where the claim was frivolous or vexatious. A claimant would not be at risk of paying the newspaper’s legal costs if his or her claim was unsuccessful.

He did not take into account alternatives. The inquiry was presented with clear evidence of other dispute resolution (ADR) mechanisms. In particular there was a lack of engagement with evidence from the

40 Para 10.12, Part C, The Leveson Report 41 Leveson and Local Papers” Paul Marsden, After Leveson, ed. John Mair. Abramis (2013) 41 Leveson and Local Papers” Paul Marsden, After Leveson, ed. John Mair. Abramis (2013)

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Alternative Libel Project,42 the most recent and comprehensive study into methods for resolving libel disputes. The project considered all possible options and found that mediation, rather than arbitration, was suitable in resolving the vast majority (90%) of cases.

It is unclear how Lord Justice Leveson reached his consensus on arbitration as the particular form of ADR. The decision seems to have been reached for a combination of reasons: providing increased claimant access to justice; preventing avoidance of dispute resolution by the press; and being a useful means of providing a commercial incentive to newspapers to comply with a regulator approved under Royal Charter.

There is no assessment of the merits and demerits of different ADR mechanisms in the report. The critique of this issue merely focuses on the failures of the PCC’s mediation and complaints system and conflates fact-specific problems relating to the PCC and remedies for complainants, with perceived failings of mediation as a form of ADR.

The lack of consideration of all ADR options was an omission that has affected the workability and credibility of the Leveson-endorsed arbitration process, which is explored in Chapter 3.3.

2.4 EXEMPLARY DAMAGES Exemplary damages in litigation are at the core of Lord Justice Leveson’s recommendations43 and have sparked significant debate. The threat of exemplary damages, which can be unlimited, chills free speech.

The parameters of the scheme that Leveson envisaged were broadly in line with the conclusions of the Report of the Law Commission on Aggravated, Exemplary and Restitutionary Damages44 – which have never been adopted. These conclusions were only supported by a minority of those consulted and have been dismissed in a key textbook on the law of damages as ‘a retrograde step, with its inevitable and twin results of allowing the civil law to enter the very different domain of the criminal law and of providing windfalls for claimants which are in truth unmerited’.45

42 Alternative Libel Project Report – it is worth noting that this project benefitted from the advice of a panel of experts, chaired by Sir Stephen Sedley and including the legal director of the Guardian Media Group Gill Phillips, David Price QC, Heather Rogers QC and several other prominent people in the fields of media law and ADR. http://www.englishpen.org/wp-content/uploads/2012/03/Alternative_Libel_Project_ FinalMarch2012.pdf 43 “I recommend that exemplary damages (whether so described or renamed as punitive damages) should be available in actions for breach of privacy, breach of confidence and similar media torts as well as for libel and slander. Voluntary Participation in a regulatory regime contained in or recognised by statute and good internal governance in relation to the sourcing of stories should be relevant to the decisions reached in relation to such damages.” (Leveson Report Vol. IV page 1512 para 5.12 44 Law Commission Report 247 http://www.lawcom.gov.uk/wp-content/uploads/2015/04/LC247.pdf 45 McGregor on Damages, 18th edn (2009) para 11-006

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Lord Justice Leveson also did not invite or receive evidence on exemplary damages and did not address the problems around the Law Commission’s unimplemented proposals. One of those problems was identified by the Supreme Court Procedure Committee which cautioned that exemplary damages would sometimes be claimed in situations where they were not strictly available in order to try to frighten defendants in to settling claims.

The uncertain legal ground of the legislation on exemplary damages that arose from his recommendation is explored further in Chapter 3.

2.5 POLICE WHISTLEBLOWERS AND PRESS CONTACT Lord Justice Leveson recommended restricting everyday contact between the press and police,46 and that the Home Office should consider restricting the grounds on which journalistic material may be withheld from the police.47 Increased barriers between police and the press reduce the ability of newspapers to report on public interest issues concerning crime; in addition, enabling easier police access to journalistic material makes it harder for journalists to protect their sources, which could deter individuals from speaking to them on matters in the public interest.

The effect of Leveson’s recommendation that everyday contact between officers and members of the press be restricted has already become evident in, for example, certain forces’ refusal to name suspects or even to name those arrested. Contact between officers and the press is crucial in encouraging witnesses to come forward and to prevent secret arrests, which are deeply illiberal. In the high-profile case of Rolf Harris, the police refused to confirm he had been arrested. After The Sun broke the story48 other witnesses came forward which helped secure his conviction.

The Law Commission was heavily critical of proposals to keep the names of arrested suspects from the press, and, by extension, the public.49 There is a risk that Leveson’s recommendations would deter whistleblowers from airing their concerns. Minimised contact between individual officers and reporters would leave crime correspondents

46 Recommendations 75-78 at page 1814 http://webarchive.nationalarchives.gov.uk/20140122145147/ http://www.official-documents.gov.uk/document/hc1213/hc07/0780/0780_iv.pdf 47 “I recommend that the Home Office should consider and, if necessary, consult upon (a) whether paragraph 2(b) of Schedule 1 to the Police and Criminal Evidence Act 1984 should be repealed; (b) whether PACE should be amended to provide a definition of the phrase “for the purposes of journalism” in s13(2); and (c) whether s11(3) of PACE should be amended by providing that journalistic material is only held in confidence for the PACE provisions if it is held or has continuously been held since it was first acquired or created subject to an enforceable or lawful undertaking, restriction or obligation.” (Leveson recommendation 68.) 48 “Rolf Harris sex abuse arrest” http://www.thesun.co.uk/sol/homepage/news/4894271/Rolf-Harris-sex- abuse-arrest.html 49 Law Commission Consultation Paper No 209 on Contempt of Court http://www.lawcom.gov.uk/wp- content/uploads/2015/03/cp209_contempt_of_court_summary.pdf

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reliant on press officers to give “official” lines on policing issues, with potential damage to the concept of open justice, as well as to the conduct of investigations.

Schedule 1 of the Police And Criminal Evidence (PACE) Act prevents police seizing journalistic materials without first gaining a production order from a judge. There is an established body of case law such as Breen v PSNI50 that source protection is crucial to the right to free expression and even the right to life. In Financial Times & Others vs United Kingdom,51 the European Court of Human Rights recognised the importance of source protection, ruling that: ‘without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result, the vital “public watchdog” role of the press may be undermined and the ability of the press to provide accurate and reliable reporting may be adversely affected.’

The government did consult in 2014 about changing schedule 1 of PACE, but not in the way that Leveson recommended.52 PACE contains a provision that journalists be given notice, and have the right to make representations, when a court is considering a police application for a production order for journalistic material. The government consulted on whether to use the Deregulation Bill to remove this right from PACE, and instead allow rules regarding this to be made alongside other court rules but, after protests from the media, the government decided to retain the right in PACE itself. This protection is vital in order to maintain the public watchdog role of the press and must not be weakened.

2.6 DATA PROTECTION The Leveson proposals on data protection suggest a significant narrowing of the exemption for journalism, art, or literature contained in Section 32 of the Data Protection Act (DPA), proposing that it should only be available when “the processing of data is necessary for publication, rather than simply being in fact undertaken with a view to publication.”53 This could criminalise the basic journalistic practice of gathering and considering information. Furthermore, it could jeopardise the retention of information, which may prove useful for later publication, or be used to defend the publication from a future defamation action.

50 [2009] NICty 8 (http://www.courtsni.gov.uk/en-gb/judicial%20decisions/publishedbyyear/ documents/2009/2009%20nicty%208/j_j_2009nicty8final.htm) 51 no.821/03 ECHR 2009 (http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001- 96157#{“itemid”:[“001-96157”]}) 52 Ministry of Justice clause 47 amendment consultation letter https://www.gov.uk/government/uploads/ system/uploads/attachment_data/file/285555/Clause_47_amendment_consultation_letter_260214.pdf 53 p.1810 of the Leveson Report

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In response to Lord Justice Leveson’s recommendation, the Information Commissioner’s Office published a guide to data protection for journalists in September 2014.54 These guidelines show only a vague understanding of the working lives of newspaper reporters, highlighting the question of whether data protection norms can be applied to journalism. For example, the suggestion that reporters should delete information they no longer need does not reflect how stories can evolve over time.

This is a pressing point as Lord Justice Leveson asked that the ICO should consider a publication’s membership of a recognised press regulator in its decisions on data protection issues.

In light of England and Wales’s new libel legislation, which better protects freedom of expression, litigants have begun looking at using the DPA to block the publication of material they do not want in the public domain.

Complaints to the ICO under the DPA can result in a defendant being prevented from continuing to process data in a way that is inconsistent with the Act, the effect of which may be that journalists have to delete information held about the complainant that could be used in future stories in the public interest (a remedy that would not be available under traditional libel proceedings). 55

Furthermore, claimants are allowed five more years to bring a defamation-type claim involving personal data under the DPA than they are for a claim for libel or slander.

Therefore any weakening of journalistic defences in the DPA would damage all journalism, especially considering increasingly emboldened remedy-seeking litigation being brought by claimants under the act. A recent, albeit unsuccessful, example of this practice concerned the darts player, Phil Taylor, who attempted to prevent The Sun from publishing an interview with his two daughters. Taylor sought a high court injunction on the grounds that The Sun, in carrying the article, would have invaded his privacy and breached the DPA.56

54 Data protection and journalism: a guide for the media” ico.org.uk (4 September 2014)http://ico.org. uk/~/media/documents/library/Data_Protection/Detailed_specialist_guides/data-protection-and-journalism- media-guidance.pdf 55 Sunderland Housing Company & Another v Baines & others [2006] EWHC 2359 (QB) 56 “Darts champion Phil the Power Taylor fails in High Court bid to gag the Sun” (3 July 2015) http:// www.theguardian.com/media/greenslade/2015/jul/03/darts-champion-phil-taylor-fails-in-high-court-bid-to- gag-the-sun

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2.7 ONLINE PRESS ‘People will not assume that what they read on the internet is trustworthy or that it carries any particular assurance or accuracy’57 reads Lord Justice Leveson’s report, which recommends that the new system of press regulation apply to ‘press-like services’ which ‘would also include broadcasters and internet sites which cover news or celebrity issues’.58 In his conclusions, Lord Justice Leveson wrote just one page on the relevance of the web, the medium through which the future of journalism will be played out. The ubiquity and reach of the internet poses fundamental questions about privacy and free expression in the modern era, yet these questions were not considered in any depth by the inquiry.

The popular UK online press is a combination of British newspaper- owned websites, broadcaster-owned websites, and American-owned websites. Some, but not all, of the first category are expected to bear the cost and restrictions of belonging to a regulator, while news websites in the second category do not, even though their owners belong to a statutory one.59 The third category have news operations in the UK but are completely free of regulation and are protected by the US First Amendment. It is difficult to see how this regulatory imbalance is sustainable and this reality was not fully explored by Leveson.

The protections given to freedom of expression in other jurisdictions may make much of the Leveson Report redundant in an era of media convergence. The US is the home to the world’s largest internet companies and, perhaps not coincidentally, has strong protections for freedom of expression under the First Amendment of the US Constitution.

The prospect of media regulation tourism is exacerbated by the facts that the majority of the Defamation Act 2013 does not apply to Scotland, and the Act does not apply in Northern Ireland at all,60 giving asymmetric libel laws even within the UK. Professor George Brock commented during his lecture, ‘Trauma or Catharsis’ at Gresham College, London61 that the managing editor of the Financial Times had joked that, should UK regulation run contrary to the paper’s interests they could, given the internet’s reach, quite easily move to New York and run the content of the UK edition from there.

57 para 3.3, p.737 The Leveson Report 58 p.1791 The Leveson Report 59 The BBC is regulated by the BBC Trust http://www.bbc.co.uk/editorialguidelines/page/guidelines- accountability-bbc-trust 60 Libel Reform website http://www.libelreform.org/ 61 The Leveson Inquiry: Trauma or Catharsis? – Professor George Brock https://www.youtube.com/ watch?v=G-B4MrabZ1g

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The judge’s view was that the internet was an ‘ethical vacuum’ and that readers do not trust its content is at odds with research from Ofcom62 which has demonstrated that this year, for the first time, more people claim to access news via the web (41%) than via print (40%) and 20% of online news users access it through social media (Facebook and Twitter). The Reuters Institute’s Digital News Report 2015 showed that 60% of those aged 18-24 regard the internet as their main source of news, with the BBC the most used provider. This trend is set to continue as tablet and smartphone technology becomes ever more ubiquitous. The Leveson Report was wedded to an increasingly false distinction between traditional media and new media.

The failure of the Leveson Inquiry to consider the enormous challenge and opportunities that the internet poses to newspapers – the most significant technological development in journalism since the invention of the telegram – has led to conclusions which place the UK’s press at a serious disadvantage to overseas outlets which are protected by constitutional guarantees of freedom of expression.

2.8 PUBLIC INTEREST The Leveson Report dismisses calls for an across-the-board public interest defence in press cases, stating: ‘There are, however, other mechanisms to ensure that the law is not brought to bear on journalists (or, indeed, on any one else) in an oppressive or unfair way.’

Leveson maintains that the wisdom of juries and the discretion of judges should be relied on. Alex Bailin QC of Matrix Chambers has suggested that this assumption ‘surely strengthens the case for such a [public interest] defence’.63 It is noteworthy that a number of independent reports64 and experts have queried the lack of a public interest defence across the legislative framework that governs the media.

The press has a ‘watchdog’ responsibility to report on matters in the public interest. From the Daily Mail’s campaign for the prosecution of the killers of Stephen Lawrence to the Daily Telegraph’s exposé of MPs’ expenses claims, British journalism at its best serves the public like no other institution. But without a public interest defence, reporters run the risk of prosecution in the course of legitimate investigations. Journalism in the public interest is expensive and time consuming. It can also be extremely risky for reporters, who may on occasion

62 Ofcom, News Consumption in the UK (25 June 2014) http://stakeholders.ofcom.org.uk/binaries/research/ tv-research/news/2014/News_Report_2014.pdf 63 Alex Bailin QC, Leveson: police and the media, the proposals, Inform (3 December 2012) http://inforrm. wordpress.com/2012/12/03/leveson-police-and-the-media-the-proposals-alex-bailin-qc/ 64 For example Index on Censorship’s submission to the Leveson Inquiry: http://webarchive. nationalarchives.gov.uk/20140122145147/http:/www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Submission-by-Index-of-Censorship.pdf

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be forced to push the boundaries of the law in order to secure vital information. But journalists do not have access to public interest defences in many of the laws which affect the media, and Lord Justice Leveson rejected the idea of introducing one in statute.

Furthermore there was a lack of engagement with the important European jurisprudence in recent years, which have repeatedly upheld the public interest as an important, if not crucial, defence in media cases. For example, Axel Springer v Germany65 concerned the publication of photos and two articles on the prosecution on drug charges of a well-known German television actor. The German courts had granted an injunction against publication, finding that the actor’s right to protect his reputation prevailed over the public’s interest in being informed. The European Court of Human Rights found that, under the circumstances, the interference with the publisher’s Article 10 rights was not necessary in a democratic society: there was a public interest in criminal proceedings, the actor was well-known and the information had only been published after its disclosure by the prosecuting authorities. The injunction was capable of having a chilling effect and was not justified.

In failing to recognise that the public interest is not adequately protected in a number of laws, including the Official Secrets Act, Regulation of Investigatory Powers Act, Bribery Act, and the Computer Misuse Act, Lord Justice Leveson demonstrated that, when faced with a divergence of opinions on freedom of expression, he accepted the status quo when it was inimical to journalistic freedoms and questioned it when it protected them.

The lack of a clear law on public interest arguably contributed to CPS mishandling of the prosecution of a number of journalists. That confusion peaked following the Court of Appeal’s decision on the definition of the common law offence of misconduct in public office, where it was held that the ‘necessary conduct was not simply a breach of duty or a breach of trust’ but ‘one where the conduct was calculated to injure the public interest.’66

The former director of public prosecutions (DPP) and Liberal Democrat peer, Lord Ken Macdonald QC stated, ‘We have to give the highest regard to the importance of freedom of expression and the free exchange of ideas, and I think it is simply obvious that there are circumstances in which it can be in the public interest for journalists to pay for information.’67

65 MLDI, European Court rules pro speech in privacy cases (18 July 2014) http://www.mediadefence.org/ stories/european-court-rules-pro-speech-privacy-cases 66 R -v- ABC & Others; R -v- Sabey [2015] EWCA Crim 539 http://www.bailii.org/ew/cases/EWCA/ Crim/2015/539.html 67 BBC Radio 4 Today programme, 18 April 2015 http://www.bbc.co.uk/programmes/b05qv959

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The recent developments in this area have caused two former DPPs to highlight public interest laws. Macdonald, DPP from 2003-08, stated: ‘It looks as though, in the charging decisions that were made in the past in the Elveden cases, not enough weight was attached to the public interest in free expression and the freedom of the press.’68

This was followed by an announcement69 by Sir Keir Starmer QC – recently elected as an MP and a member of the Parliamentary Home Affairs Select Committee – that he backs the creation in legislation of a specific public interest defence allowing journalists an overarching defence against criminal charges.70 Though Sir Keir, as DPP, issued guidelines for media-related prosecutions in September 2012, he now claims the laws protecting journalists are not ‘clear and accessible enough’, and that a new law ‘governing this difficult and controversial area’ is needed. This would be a positive development, providing protection for journalists working in the public interest, and an accompanying defence in civil proceedings would provide important support for a free, independent press.

68 Don’t prosecute journalists who pay for public-interest leaks, says ex-DPP http://www.theguardian.com/ law/2015/apr/18/dont-prosecute-journalists-who-pay-for-public-interest-leaks-says-ex-dpp 69 “Starmer and Sun stand off at sell out press freedom debate” http://londonpressclub.co.uk/starmer-and- sun-stand-off-at-sellout-press-freedom-debate/ 70 “Keir Starmer to call for journalists to have a public interest defence” (13 July 2015) http://www. theguardian.com/media/greenslade/2015/jul/13/keir-starmer-to-call-for-journalists-to-have-a-public- interest-defence

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CHAPTER 3:

THE LEGISLATIVE FRAMEWORK – A LEGAL ANALYSIS As outlined in the previous chapter, the Leveson report failed to consider adequately the impact on free expression of overly restrictive rules covering the free press. Legislation, rushed through both Houses of Parliament with just 13 hours of debate not only went far beyond what Leveson recommended, but introduced some of the most draconian rules covering the press in any established democracy. This chapter analyses the post-Leveson regime for regulation, looking at the chilling effect it will have on free speech and its consequential breach of laws protecting this. It will also consider issues such as how the right to a fair trial is affected, and the cost of regulation to the public purse.

3.1 A RUSHED AND UNCONSTITUTIONAL REGIME The post-Leveson regime for press regulation in England and Wales consists of a Royal Charter (‘the Charter’), and two pieces of statute. The Charter provides the government with the authority to establish a recognition panel which in turn has the power to recognise one or more bodies as a press regulator (making them a ‘recognised regulator’).

The Enterprise and Regulatory Reform Act 2013 provides for this type of Charter to be changed only in accordance with its own provisions. The second piece of legislation, the Crime and Courts Act 2013 (the Act), introduced new rules governing the award of damages and costs by the courts in media-related legislation, drawing a distinction between those publishers who are members of a recognised regulator and those who have decided not to join.

These provisions are similar to but different from those put forward by Lord Justice Leveson. The most obvious difference is that Leveson recommended that the recognition role be carried out by Ofcom,71 whereas in the event the Press Recognition Panel was set up under the auspices of a Royal Charter.

Another significant difference relates to a change in the costs rules, with Lord Justice Leveson recommending they should be amended to enable courts to take into account ‘the availability of an arbitral system set up by an independent regulator itself recognised by law,’72 but the final statutory outcome being much more draconian.73 In addition to the final

71 Leveson recommendation No 31 72 Leveson recommendation No 73 73 See the discussion about s. 40 Crime and Courts Act 2013 below

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regime differing from Lord Justice Leveson’s proposals, it is different from anything that has gone before. Royal Charters have previously been proposed by an industry or institution, not imposed on them by government.

The newspaper industry did put forward its own Royal Charter proposal, but this was rejected by the Privy Council. An application for a judicial review of this decision was also rejected. Richard Gordon QC criticised the process, saying: ‘This process was wholly legally defective, this was in all but name an executive roller coasting through of a [government] charter. If government policy is to ensure confidence of public and press you cannot simply ignore the views of the press or fair consideration of those views.’74 In spite of the Royal Charter petition put forward by the newspaper industry, the politicians’ Royal Charter went ahead.

The government’s Charter was highly controversial and yet barely consulted on.75 It is unheard of to ask the Queen to give her seal to a contentious charter. The Privy Council’s own advice notes: ‘Any proposal which is rendered controversial by a counter-petition is unlikely to succeed.’76

Furthermore, the nature of all future Royal Charters relating to particular industries was fundamentally changed by the introduction of section 96 of the Enterprise and Regulatory Reform Act 2013. The provision says that such charters can only be changed in a manner specified in the Charter itself. The Charter relating to press regulation says to amend the Charter, approval of at least two-thirds of the members of both Houses of Parliament and all the members of the board of the recognition panel77 is required. Civil liberties watchdog Liberty has described this attempt to tie the hands of future parliaments as ‘convoluted, unconstitutional and un-British.’78

Its practical effect, in any case, is not to tie the hands of Parliament, but of the press. If politicians tire of the Leveson regulatory apparatus they can always repeal section 96 by a simple majority. But if newspapers are forced to join an approved regulator, and find Leveson’s recognition criteria are stifling freedom of expression, they will be unable to amend them unless they can persuade two-thirds of both House of Parliament to agree – an almost impossible hurdle.

74 Mark Sweney, Guardian, “Newspapers’ bid for injunction against press regulation royal charter fails” (30 October 2013) http://www.theguardian.com/media/2013/oct/30/newspapers-injuction-press-regulation- royal-charter 75 There was a short period of time before the Royal Charter was granted when the Privy Council invited views on the Royal Charter put forward by the press itself. 76 http://privycouncil.independent.gov.uk/royal-charters/applying-for-a-royal-charter/ as of 9 July 2015. 77 Para 9, Royal Charter on Self Regulation of the Press https://www.gov.uk/government/uploads/system/ uploads/attachment_data/file/254116/Final_Royal_Charter_25_October_2013_clean__Final_.pdf 78 Liberty’s submission to the Department for Culture, Media and Sport on two Royal Charter proposals for the future regulation of the press, May 2013, https://www.liberty-human-rights.org.uk/sites/default/files/ liberty-s-submission-to-department-for-culture-media-and-sport-on-two-royal-.pdf as of 9 July 2015.

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The process of drawing up the Royal Charter and passing the relevant statutory provisions was done at ‘breakneck speed’.79 There was no consultation with the public, and no formal consultation with civil society or the press in relation to the new statutory provisions. The only consultation which took place was between Ministry of Justice officials and representatives of bloggers and civil society groups on the very narrow issue of small blogs. This approach breached the government’s own guidelines, which say that for a new and contentious policy, a 12- week consultation may be appropriate, and that policy makers should ensure that the consultation captures the full range of stakeholders affected.80

Yet, one particular pressure group was given a consultative status far beyond what is normally considered appropriate in the drafting of legislation, namely Hacked Off, which discussed and debated the legislation with the then Leader of the Opposition Ed Miliband MP in his office on the night that the cross-party agreement on new legislation was agreed. In particular, Hacked Off framed the debate around the controversial inclusion of a statutory underpinning, exemplary damages and court costs. The group claims:

‘Hacked Off had done a great deal of research and consultation on these matters, and we regard them as essential to effective self- regulation. We made recommendations [that night] in keeping with our Leveson Bill proposals.’81

While Hacked Off were in the room when the deal was done between the party leaders, there was very little parliamentary scrutiny, with no pre-legislative work done by parliamentary committees, and very little debate. Not even a full day was spent debating this important legislation. In total, both Houses of Parliament spent just 13 hours and five minutes discussing the Charter and statutory provisions.

Furthermore, many members of parliament had not seen the relevant documents when they did have a debate, with Chris Bryant MP saying at the beginning of the House of Commons debate on the Charter ‘it is all very well to talk about the publication of the draft charter, but it is not available in the Vote Office or in the Library. The clerk has a copy of it, but honourable members do not have copies of it. It is an odd way of doing business for us to debate something that we have never had an opportunity to see’.82

79 Ashley Hurst, “Leveson, Crime and Courts Bill and Online publishers, the devil is in the detail” (9 April 2013) https://inforrm.wordpress.com/2013/04/09/leveson-crime-and-courts-bill-and-online-publishers-the- devil-is-in-the-detail-ashley-hurst/ 80 Consultation Principles (October 2013) https://www.gov.uk/government/uploads/system/uploads/ attachment_data/file/255180/Consultation-Principles-Oct-2013.pdf 81 Hacked Off: What did we do? And did we win? (25 March 2013), http://hackinginquiry.org/comment/ hacked-off-what-did-we-do-and-did-we-win/ 82 Chris Bryant MP, House of Commons Hansard, 18 March 2013, Column 630

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Later in the debate, Mr Bryant said, ‘We are dealing with a motion that we have not seen – the motion we are debating is not printed anywhere – and a draft charter that people have only just seen, halfway through the debate as it is handed round. We have manuscript amendments in this House and the House of Lords, and on the whole we tend to make bad legislation when we do it on the hoof and those on the Back Benches are asked to trust in those on the Front Benches.’83

The Charter and supporting statutory provisions were agreed, not by Parliament in an open and democratic fashion, but at an unannounced late night meeting of ministers, opposition MPs and several members of the Hacked Off group: there was no representation from free expression groups, newspapers, or wider civil society.84

The rushed process meant that proper discussions with devolved governments in Northern Ireland and Scotland did not take place. As a result, there are three different sets of rules regarding press regulation in three different jurisdictions – the post-Leveson regime in England and Wales; a Royal Charter which puts in place a formal system for recognising a press regulator, but is not backed by statute, in Scotland, and no specific press regulation measures in Northern Ireland. These anomalous positions could cause considerable practical difficulties for UK-wide publications.

3.2 THE USE OF STATUTE TO REGULATE THE PRESS The post-Leveson regime mixes the use of statute with elements of self-regulation, in a system described as co-regulation by the freedom of expression group ARTICLE 19.85 It is a regime which the Prime Minister supported, while warning against a ‘full legislative response’, on grounds of ‘problems of necessity, practicality and fundamental principle’.86

The nature of the regime did not concern some MPs, such as John Leech, during the short parliamentary debate. Leech noted: ‘We can argue about whether this amounts to statutory underpinning of the Royal Charter – we would argue that it does, while others might argue that it does not – but that really does not matter, as long as it does its job and protects the new independent regulator.’87

83 Ibid Column 654 84 Nigel Morris & Ian Burrell, “David Cameron insists plans for post-Leveson Royal Charter for press regulation will ‘work and endure’ despite hostility from newspaper groups”, The Independent (19 March 2013) http://www.independent.co.uk/news/uk/home-news/david-cameron-insists-plans-for-postleveson- royal-charter-for-press-regulation-will-work-and-endure-despite-hostility-from-newspaper-groups-85397- 79.html 85 UK: Draft Royal Charter on Self Regulation of the Press and Amendments to the Crime and Courts Bill, ARTICLE19 (March 2013) http://www.article19.org/data/files/medialibrary/3687/13-04-02-LA-uk.pdf 86 David Cameron, House of Commons Hansard, 18 March 2013, Column 633 87 John Leech MP, House of Commons Hansard, 18 March 2013, Column 670

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Other MPs, such as Jacob Rees-Mogg, thought the nature of the regime mattered considerably: ‘I am concerned about deciding to license the press – and that is what we are doing.’88

The use of statute means the involvement of Parliament; the use of a Royal Charter means the involvement of the Privy Council which includes serving ministers; and the use of public money means that there must be some oversight on how it is spent. It is therefore clear that there has been significant political involvement in establishing the press regulation system.

The notion of politicians questioning the press has already started to be normalised. This is illustrated by the appearance of Alan Rusbridger, the Guardian editor, before the Home Affairs Select Committee in response to published articles concerning breaches of privacy by national security agencies. Rusbridger was asked a question which, if answered in the affirmative, would have resulted in him incriminating himself.89 In another example of inappropriate political pressure being applied on the press, a special adviser for Maria Miller, the minister involved in developing the government’s response to the Leveson inquiry, made a point of referring to the minister’s role when a Daily Telegraph reporter asked questions about Mrs Miller’s expenses claims.90

Index on Censorship, which works to promote and protect freedom of expression around the world, has said 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’.91 With regard to the Charter, Index pointed to the drafting and approval by the Privy Council, which includes ministers and other politicians, arguing that making specific laws for the press undermines the principle of press freedom and threatens the ability of the press to hold those same politicians to account.92

These concerns have consistently been met by proponents of the system who explain away the involvement of statute as irrelevant because the system of press regulation put in place is characterised as voluntary.

This argument is undermined by the fact the Act imposes punishments for not volunteering to be regulated under a framework set out by the state. While newspapers and other publishers can continue to operate without first obtaining a licence or prior approval for publication,

88 Jacob Rees-Mogg MP, House of Commons Hansard, 18 March 2013, Column 674 89 Home Affairs Select Committee (Tuesday, 3 December 2013) http://www.publications.parliament.uk/pa/ cm201314/cmselect/cmhaff/c231-iv/c23101.htm 90 Claire Newell and Holly Watt, ‘The Minister and a warning to The Telegraph before expenses story’, The Telegraph (11 December 2012) http://www.telegraph.co.uk/news/newstopics/mps-expenses/9738505/ The-minister-and-a-warning-to-The-Telegraph-before-expenses-story.html 91 “Leveson, the Royal Charter and press regulation”, Index on Censorship, (11 April 2013) https://www. indexoncensorship.org/2013/04/index-on-censorship-leveson-royal-charter-and-press-regulation/ 92 Ibid

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the Act imposes penalties which attempt to force publishers into membership of a recognised regulator, compel them to meet its standards, subject themselves to its fines, and print forced apologies, all of which are conditions of membership. Is this voluntary?

UK and international free speech organisations have criticised the system. The World Association of Newspapers and News Publishers (WAN-IFRA) has said that, rather publishers being encouraged to sign up voluntarily to a regulator governed by the Royal Charter system, they face an explicit threat pf punitive damages in libel actions should they decide not to. This defies any definition of voluntary as understood by the WAN-IFRA delegation which reported on the UK in March 201493 The international response to these punitive damages has been one of concern, as explored in chapter 4.

ARTICLE 19 has explained the difficulties with this approach, saying that regulation coerced by government ‘is not self-regulation, but at best statutory regulation by the profession itself, and therefore vulnerable to many of the same abuses as other forms of statutory regulation.’94

3.3 THE ROYAL CHARTER AND ENTERPRISE AND REGULATORY REFORM ACT 2013 Both the use of a Royal Charter, and the contents of the Charter itself, interfere with the right of the press to freedom of expression.

Schedule 3 of the Charter sets out the conditions that a regulator must fulfil in order to be able to become a ‘recognised regulator’. While a truly self-regulatory body can have far-reaching powers, many provisions, including the use of arbitration, and the power to direct apologies and impose fines are problematic for freedom of speech if they are forced upon publishers by an externally imposed regulator.

THE USE OF A ROYAL CHARTER The use of a Royal Charter to establish a system of press regulation exposes the system to political involvement, which could compromise the role of the press as a means of holding power to account.

Royal Charters are a relic of the medieval powers of the Royal Perogative. They can be changed by the Privy Council, with the Queen’s approval (which is never withheld). As the Privy Council

93 P.19, Press Freedom in the United Kingdom, WAN-Ifra, March 2014, http://www.wan-ifra.org/sites/ default/files/field_article_file/WAN_IFRA_UK_Press_Freedom_Rpt_March_2014.pdf 94 “International standards: regulation of the print media” ARTICLE 19, (5 April 2012) https://www. article19.org/resources.php/resource/3023/en/international-standards:-regulation-of-the-print-media

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consists mostly of ministers and ex-ministers, it is effectively an extra- Parliamentary arm of the state. It is bizarre that the government should use such an archaic device to try to control freedom of expression in the internet age. During discussions about the use of a Royal Charter, several commentators expressed concerns.

Lord Pannick QC said ‘The modern Privy Council does not itself perform a deliberative and consultative function. It now meets principally to confer formal approval on documents, the content of which has already been agreed and decided by the Cabinet, committees of the Privy Council, or Ministers and Government departments,’ adding: ‘The Privy Council website... accurately states that “once incorporated by Royal Charter, a body surrenders significant aspects of the control of its internal affairs to the Privy Council”. That means to Ministers.’95

Liberty criticised the use of the Charter as ‘a vehicle more closely tied to government than any Act of Parliament’ saying: ‘A Royal Charter is constitutionally inappropriate, undemocratic, opaque and in no way fit for this purpose.’96

A statutory provision was introduced to try to address these concerns, by way of s.96 of the Enterprise and Regulatory Reform Act 2013. This says: ‘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 intention behind this measure was to write in to statute a restriction on how the Royal Charter could be changed. The Charter itself requires that the board of the recognition panel and two thirds of those voting in both Houses of Parliament to approve any changes to it.97

Section 96 offers very little protection, however, as it could be repealed by a simple majority in both Houses of Parliament, rendering the provisions in the Royal Charter useless should the Privy Council decide to change it.

The two-thirds majority rule means that, however unworkable the Charter might prove to be, the press have no means amending it without crossing an enormously high Parliamentary bar, whereas politicians can amend it by a simple majority.

95 Lord Pannick QC, Inforrm website (18 January 2013) https://inforrm.files.wordpress.com/2013/04/ opinion.pdf . 96 Royal Charter inappropriate mechanism to implement press regulation, Liberty (21 May 2013) https:// www.liberty-human-rights.org.uk/news/press-releases/liberty-royal-charter-inappropriate-mechanism- implement-press-regulation 97 Paragraph 9, Royal Charter on the self-regulation of the press

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REPORTING TO PARLIAMENT The Charter requires the recognition panel to: ‘Inform Parliament, the Scottish Parliament, and the public as soon as practicable if, on the first anniversary of the date the Recognition Panel is first in a position to accept applications for recognition and thereafter annually if:

1. There is no recognised regulator; or 2. In the opinion of the Recognition Panel, the system of regulation does not cover all significant relevant publishers.’98

If the recognition panel reports to Parliament that a significant relevant publisher – and one could assume a national newspaper would meet this criteria, but it is not clear who else would – is not a member of a recognised regulator, then the implication is that Parliament would consider taking further action. This apparently intimidating clause has no place in voluntary regulation.

ARBITRATION For a regulator to be recognised it must provide an arbitration service, which is free for claimants to use.99 As this section shows, mandatory arbitration is a serious impediment to the right to a fair trial as established in common law and Article 6 of the ECHR. Arbitration is akin to a private court: it produces a binding decision100 which precludes the ability to take the dispute to court, denying the parties their convention rights to a fair trial. For this reason, arbitration must be entered into voluntarily.

The English courts have said: ‘The court in Strasbourg has said in relation to Article 6 of the ECHR that the right of access to a court may be waived, for example by means of an arbitration agreement, but such waiver should be subjected to “particularly careful review” to ensure that the claimant is not subject to “constraint”.... If that is the approach of the European Court of Human Rights to an agreement to arbitrate, it seems to us likely that compulsion of ADR would be regarded as an unacceptable constraint on the right of access to the court and, therefore, a violation of Article 6.’101

Even Hacked Off’s chair Hugh Tomlinson QC, who is a proponent of the Crime and Courts Act, has said: ‘The parties cannot be forced to use

98 Para 10, Schedule 2, Royal Charter on Self-Regulation of the Press, https://www.gov.uk/government/ uploads/system/uploads/attachment_data/file/254116/Final_Royal_Charter_25_October_2013_clean__ Final_.pdf 99 Para 22, Schedule 3, Royal Charter on Self-Regulation of the Press 100 Except in limited circumstances such as where the wrong procedures were followed. 101 Para 9, Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576

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arbitration (this would be a breach of their right under Article 6 of the European Convention on Human Rights to have ‘access to court”).’102

There are also concerns regarding the cost of providing an arbitration service: one which is free for claimants to use would come at considerable cost to publishers, who would have to pay lawyers for all sides, plus the arbitrator, in addition to any compensation. This could lead to a rush of claims against newspapers, encouraged by unscrupulous claims management companies.

Financial concerns about providing an arbitration service are particularly acute for the regional press. The House of Lords Communications Committee summarised the concerns of witnesses which appeared before its recent inquiry:

‘Professor Frost [Chris Frost, Chair of the NUJ ethics committee] told us that the regional press were concerned that, “an arbitration system, as suggested by Leveson, would be very expensive for them because they would end up funding a system that would spend most of its time, effort and energy looking at claims that have gone to the national newspapers”. Similarly, Mr Satchwell [Bob Satchwell, Executive Director of the Society of Editors] explained that, “If you have a compulsory arbitration system, it may not sound that expensive but it would be an extra cost to them [the local press]… They are looking at very tight, relatively small budgets where the slightest hiccup could make the difference between a paper living and dying”.’103

In addition, such a system is likely to suffer from the problems of most arbitration processes, where evidence and outcomes are confidential. This would run against the very heart of Leveson’s remit to increase public confidence in press ethics.

APOLOGIES A recognised regulator must have the power to ‘direct appropriate remedial action for breach of standards and the publication of corrections and apologies’.104 This applies to individual breaches of standards; groups of people whose complaints the Board has the power to hear; and to matters of fact where there is no identifiable individual who has been affected.

102 Para 82, Hugh Tomlinson QC, Media Regulation: Final Proposal for future regulation of the media: A media standards authority. Hugh Tomlinson QC, http://webarchive.nationalarchives.gov. uk/20140122145147/http:/www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Media- Regulation-Round-Table.pdf 103 Para 153, Press Regulation – Where are we now? House of Lords Communications Committee – Third Report, http://www.publications.parliament.uk/pa/ld201415/ldselect/ldcomuni/135/13502.htm 104 Para 15, Schedule 3, Royal Charter on the self-regulation of the press

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This is a fundamental change to the principle that what content appears where in a publication is ultimately the decision of the editor and the editor alone. Mandatory apologies are a breach of press freedoms and may be incompatible with the ECHR and other international norms.

Lord Pannick QC has pointed out: ‘If the editor does not believe he or she should apologise, or does not agree with the content or the placing of the apology as required by the regulator, it raises real issues of freedom of expression under Article 10 for the newspaper then to be required to publish a specific statement in a specific place.’105

The suggestion that the ‘nature, extent and placement of apologies’106 should be in the power of the regulator is far beyond what courts can currently order. As Desmond Browne QC has pointed out, in a forceful legal opinion, this would not just be an interference with free expression, it would be its antithesis – ‘compulsory expression’.

Attempting to control content of any kind violates international norms. Ambeyi Ligabo, a UN former special rapporteur on freedom of opinion and expression, and representatives of the Organisation for Security and Cooperation in Europe and the Organisation of American States have said that there are problems with content restrictions: ‘Media-specific laws should not duplicate content restrictions already provided for in law as this is unnecessary and may lead to abuse. Content rules for the print media that provide for quasi-criminal penalties, such as fines or suspension, are particularly problematical.’107 Moreover, compulsory publication undermines the very concept of apology itself, casting permanent doubt on its sincerity, effectively rendering it meaningless.

FINES Recognised regulators must have the power to fine up to 1% of annual turnover, capped at £1,000,000, for breaches of the code. Fines will be ring-fenced in a fund for further investigations into press conduct.108 Both the fines, and the ring-fencing, may have unintended consequences that will alter media behaviour and impinge on free speech.

The power to fine, and the ring-fencing, is also a feature of the voluntary system of self-regulation operated by the Independent Press Standards Organisation. But self-regulators who decide to fine are distinct from a government-sanctioned regulator that is required to do so in three ways:

105 Press backlash over regulation deal: So far only Independent has said it will join new regulator, Press Gazette (20 March 2013) http://www.pressgazette.co.uk/press-backlash-over-regulation-deal-so-far-only- independent-has-said-it-will-join-new-regulator 106 Para 16, Schedule 3, Royal Charter on the self-regulation of the press 107 ‘International experts condemn curbs on freedom of expression and control over media and journalists (18 December 2013) http://www.unhchr.ch/huricane/huricanensfview01/93442AABD81C5C84C1256E00005 6B89C?opendocument 108 Para 19(A), Schedule 3, Royal Charter on the self-regulation of the press

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• publishers agree to pay fines under a contract into which they have entered voluntarily. The rules under which fines are levied are not imposed by the state, and therefore the state is not infringing the publisher’s rights.

• self-regulators enforce a code of practice, and operate under rules, which have been agreed voluntarily. Their members are therefore submitting themselves to higher standards than the law requires. The state does not impose either the code or the rules.

• self-regulators do not necessarily have to ring-fence fines and can have flexibility, allowing them to spend any money obtained from fines appropriately, perhaps by reducing the membership fees if the industry is improving its standards.

Under the Royal Charter, the recognition panel will not approve a regulator which does not have the power to issue significant fines. The fines can be four times higher than the highest damages found for extreme breaches of privacy and defamation. Significant fines imposed by state mandated regulators for inaccurate reporting will chill free expression. Both the EU and Council of Europe have criticised the imposition by law of high-level fines in regards to Hungary’s new media law of 2010.109

It also sets a low threshold for the imposition of fines. To gain recognition under the Charter a regulator must have the power to impose fines for ‘seriousor [our emphasis] systemic breaches of [its] standards code’. As most complainants understandably insist their case involves a serious breach, the regulator may come under pressure to impose fines in all but the most trivial cases. In contrast IPSO’s regulations limit fines to ‘seriousand [our emphasis] systemic’ breaches, meaning they can only be imposed in cases where a publisher has allowed a culture of rule-breaking, as was alleged in the case of phone-hacking.

Many newspapers are not profitable. It is possible that a large fine – or a series of smaller fines – would result in a significant number of job losses, a deterrent to journalists wishing to undertake hard-hitting investigative work.

Under the Charter, a recognised regulator must ring-fence money received from fines for an investigation fund. This creates two problems. Firstly, it creates an incentive to impose a fine. Secondly, as the ring-fenced fund grows, as it is likely to, the more the incentive for third parties to push for investigations into alleged press malfeasance

109 See Chapter 4 below

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to silence critical reporting. If the fund grows to become a significant sum of money, the regulator may face increasing political pressure to undertake new investigations, regardless of the overall behaviour of the media. Newspapers who have obeyed the code may be required to spend time and resources on investigations that have little or no relevance to the quality of their journalism.

3.4 THE CRIME AND COURTS ACT 2013 Sections 34 to 42 of the Crime and Courts Act set out rules that will apply to some publishers who become defendants in civil law cases relating to the publication of news-related material. This legislation provides for exemplary damages and discriminatory costs orders under which a newspaper could be forced to pay the other side’s costs, even if it wins. These measures will be imposed on ‘relevant publishers’ which are not members of a recognised regulator. The legislation is likely to breach both Articles 6 and 10 of the ECHR. Furthermore, it links rules on costs to conduct outside the litigation at hand, a radical and unwarranted departure from pre-existing principles.

FREEDOM OF EXPRESSION Article 10 of the ECHR states: ‘Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart 1information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

‘The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, 2restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.’

Thus everyone has the right to freedom of expression, but this may be limited if provided for by law and if it is necessary for one of the prescribed reasons. Such restrictions must be proportionate. The test of necessity in a democratic society ‘requires the Court to determine whether the interference complained of corresponded to a pressing social need, whether it was proportionate to the legitimate aim pursued, and whether the reasons given by the national authorities to justify it

110 Para 56, Para 52, Blaja News Sp. Z.O.O. v Poland (Application no. 59545/10)

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The Act is likely to breach Article 10 ECHR for a number of reasons. Firstly, the legislation is not clear. Secondly, it makes exemplary damages against relevant publishers likely, in a manner which will breach publishers’ right to freedom of expression guaranteed by Article 10. Thirdly, the new costs rules breach Article 10 and mean that publishers may have to pay a claimant’s costs, even if they have not acted unlawfully. Fourthly, it discriminates between different types of defendant.

‘PROVIDED FOR BY LAW’ Under Article 10 of the ECHR, restrictions on freedom of expression must be provided for by law and this law must be sufficiently certain. There are several poor definitions within the Act, which, on a practical level, cause confusion. Furthermore, these poor definitions have the potential to be so uncertain that they may render the restrictions in the Act incapable of being said to be ‘prescribed by law’ as required by art 10(2) ECHR. The terms ‘outrageous’ and ‘relevant publisher’ are two examples of this.

‘OUTRAGEOUS’ Exemplary damages may be awarded against a publisher which is not a ‘relevant publisher’ where the court considers it is appropriate to do so in all the circumstances of the case111 and where:

(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.112

The word ‘outrageous’ is undefined and imprecise. Lord Pannick QC, Desmond Browne QC and Antony White QC have pointed out:

‘Since almost all publication of information concerning an individual takes place in the knowledge that the individual’s Article 8 rights are engaged the requirement that the defendant has deliberately or recklessly overridden the claimant’s rights will be met in most if not all cases. Accordingly, the focus will inevitably be on whether the defendant’s conduct was “of an outrageous nature” – a matter on which views may well differ. This leaves it to the individual judge to either feel or not feel outraged by what has happened – a self-evidently uncertain and unpredictable situation.’113

111 Section 34,Crime and Courts Act 2013 112 Section 35, Crime and Courts Act 2013 113 Press Recognition Panel website http://pressrecognitionpanel.org.uk/wp-content/uploads/2015/09/ Exemplary-damages-Browne-Pannick-White-opinion.pdf&ved=0CBsQFjAAahUKEwijuMuTlZ_ IAhUCqXIKHQnNCYA&usg=AFQjCNG8Td6_Nwj8zuvRZb_C2RxWPYYKIw&sig2=BzE6mRD9LV1W3Q- WEWSqfg

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‘Outrageous’ is a highly subjective term, reflecting a judgment based on an individual’s personal moral compass, and not on any legal grounds. What outrages different individuals is largely influenced by culture. What was perceived as outrageous 50 years ago may not be seen as outrageous now; what is perceived as outrageous in Saudi Arabia may not, for instance, be considered outrageous in the UK.

The term is so vague that the courts have said it is incapable of forming the basis on which exemplary damages can be awarded: ‘It would not be right to take the language that judges have used on such occasions to justify their non-intervention and treat their words as a positive formulation of a type of case in which exemplary damages can be awarded. They have used numerous epithets – wilful, wanton, high-handed, oppressive, malicious, outrageous – but these sorts of adjectives are used in … judgments by way of comment on the facts of a particular case. It would on any view be a mistake to suppose that any of them can be selected as definitive and a jury directed, for example, that it can award exemplary damages whenever it finds conduct that is wilful or wanton.’114

‘RELEVANT PUBLISHER’ The definition of ‘relevant publisher’115 is vague, leading to uncertainty over which publishers are relevant for the purposes of the Act. In addition, most interpretations produce arbitrary results. The definition is important because it determines which publishers’ rights to freedom of expression are curtailed by the Act.

English PEN, the leading free speech charity, has examined the definition of relevant publisher, and concluded that the terminology used in the definition and exemptions themselves is poorly defined, which will lead to uncertainty for publishers and a resulting risk of a chill on free speech.116 This view was supported by the House of Lords Communications Committee which said that ‘it appears that, the term relevant publisher, as used in the Crime and Courts Act 2013, is ambiguous’.117

The definition itself depends on other undefined and uncertain terms such as ‘incidental’ which creates difficulties in relation to specialist publications which publish news about specific industries or hobbies, and ‘news-related material’, which is extremely problematic because virtually any new information may be considered news to somebody.

114 Rookes v Barnard, [1964] AC 1129, UK House of Lords 115 Section 41, Crime and Courts Act 2013 116 P.5, Who joins the regulator? English PEN, November 2014, http://www.englishpen.org/wp-content/ uploads/2014/11/Who_joins_the_regulator_5_Nov_2014_English_PEN1.pdf 117 Press Regulation: where are we now? House of Lords Communications Committee. http://www. publications.parliament.uk/pa/ld201415/ldselect/ldcomuni/135/13503.htm

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These uncertainties are underlined by the fact that ministers gave assurances that certain titles would not be ‘relevant publishers’ for the purpose of the Act, but in fact appear to be so: ‘Decanter, a magazine about wine, was given as an example by [then- Culture Secretary] Maria Miller as the type of publication which would not be relevant for the purposes of the Act. Yet news-related material forms the main content of the publication. Its news is about vineyard sales and profits, new wines, environmental issues affecting the industry, and people concerned with making and selling wine. It may not be news that is interesting to everyone, but it is news. It seems that Decanter may be a relevant publisher despite Maria Miller’s assurances otherwise.’118

And ‘So news relating to a particular pastime or hobby might be viewed as news to one person and not another. Football magazines for instance relate to a particular pastime, but contain news and opinion regarding football. Is this news-related material? In all likelihood, the answer will be yes. What if the sport is not football, but less popular, like angling? The answer should surely still be yes, but again Maria Miller identified the Angling Times as a publication that is not relevant for the purposes of the Act. There seems to be no logical explanation for this.’119

While the Act makes no distinction between news published in print and online, it does establish an exemption for blogs which are micro- businesses.120 This exemption is confusing and appears to bring some small, community based online papers within the definition of relevant publishers, while excluding extremely influential blogs such as Guido Fawkes.121 The exemption also appears to prioritise style over substance, with two publishers reporting similar content but having different online appearances not being regulated in the same way.122 The definition of relevant publisher therefore appears to be particularly arbitrary when considering sources of online news.

English PEN’s research reveals other anomalies. Broadcasters are not relevant publishers for the purpose of the act, yet their news websites are not regulated by Ofcom, so they can continue to publish free from the spectre of exemplary damages and punitive costs that competitors such as the Guardian and the Times will be subject to.123

118 p.10, Who joins the regulator? English PEN, November 2014, http://www.englishpen.org/wp-content/ uploads/2014/11/Who_joins_the_regulator_5_Nov_2014_English_PEN1.pdf 119 Ibid, p.11 120 Para 8, Schedule 15, Crime and Courts Act 2013 121 p.15, Who joins the regulator? English PEN, November 2014, http://www.englishpen.org/wp-content/ uploads/2014/11/Who_joins_the_regulator_5_Nov_2014_English_PEN1.pdf 122 Ibid p.14 & 15. English PEN cites the example of Blogpreston and the Brixton Blog, which essentially have similar content but have very different presentational styles, with Blogpreston primarily a chronological posting order, whereas the Brixton Blog styles itself as an online community newspaper and chooses to arrange its stories in different categories. 123 Ibid, p.15,

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Likewise charities are exempt124 but not-for-profit organisations which operate as limited companies, such as anti-corruption campaigners Global Witness, Index on Censorship and Which? (the Consumer Association) appear not to be exempt.125

EXEMPLARY DAMAGES AND PROPORTIONALITY Section 34 of the Crime and Courts Act links the award of exemplary damages to membership, or non-membership, of a recognised regulator.

Although the European Court of Human Rights has allowed exemplary damages in the past,126 it has repeatedly expressed concern about limits on the press and has said that ‘as matter of principle, unpredictably large damages awards in libel cases are considered capable of having [a chilling] effect and therefore require the most careful scrutiny’.127 The Act says that: ‘The court may regard deterring the defendant and others from similar conduct as an object of punishment.’128

This clause changes the nature of the civil law. It provides a literal meaning to the term ‘exemplary damages’ and allows courts to make an example of publishers who a judge rules has acted with outrageous disregard for a claimant’s human rights. It introduces a quasi-criminal concept into civil law, and is a huge departure from the principle that damages in civil cases are designed to restore claimants back to the position they were in before the tort, and, in a few exceptional cases, punish the defendant for their malicious behaviour.

The use of exemplary damages must be subject to a proportionality test. The European Court of Human Rights has said that ‘under the Convention, an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered’.129

The English Courts have also ruled that exemplary damages ‘would fail the tests of necessity and proportionality’130 on the basis that the judge ‘was not satisfied that English law requires, in addition to the availability of compensatory damages and injunctive relief, that the media should also be exposed to the somewhat unpredictable risk of being “fined” on a quasi-criminal basis. There is no “pressing social need” for this. The “chilling effect” would be obvious.’131

124 Para 6, Schedule 15, Crime and Courts Act 2013 125 p.13, Ibid 126 Independent News and Media and Independent Newspapers Ireland Limited v Ireland (Application no 55120/00), Judgment 16 June 2005 127 Ibid 128 S.35(5) Crime and Courts Act 2013 129 Case of Tolstoy Mikloslavsky v The UK (Application. No 18139/91) Judgment 13 July 1995 130 Mosley v. News Group Newspapers Ltd [2008] EMLR 20; [2008] EWHC 1777 (QB) p.197, in relation to extending exemplary damages to claims for misuse of private information 131 Ibid

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PUNITIVE COSTS AND THE CHILLING EFFECT Section 40 of the Crime and Courts Act (2013) introduces costs implications for not joining a recognised press regulator. It is a law which financially punishes publishers which have acted lawfully. It is not designed to open up access to justice, or for broader policy purposes, but to compel membership of a regulator. It says that costs orders must be made against relevant publishers which are not members of a recognised regulator,132 unless the court is satisfied that the issues at hand could not have been resolved by the regulator’s arbitration scheme, or it is just and equitable to make a different award of costs. These provisions restrict freedom of expression as well as the right to a fair trial.

The proposed system requires a publisher to join a recognised regulator and comply with that regulator’s rules. These will, according to the Royal Charter, include not only rules relating to arbitration but also to conduct, privacy and accuracy.133 They are highly likely to impose standards above and beyond that required by criminal and civil law.

It is objectionable in principle and runs contrary to the rule of law that defendants who have acted lawfully can be punished for failing to comply with a standards code which goes beyond what is required by law. These provisions would therefore fail the tests of necessity and proportionality.

The European Court of Human Rights has said that ‘punitive fines ... run the risk of being incompatible with the requirements of Article 10 of the Convention. [The court] reiterates in this regard the need to take particular care when examining restraints which might operate as a form of censorship prior to publication. It is satisfied that the threat of criminal sanctions or punitive fines would create a chilling effect which would be felt in the spheres of political reporting and investigative journalism, both of which attract a high level of protection under the Convention.’134

In addition, Section 40 of the Act is contrary to international advice. The UN Human Rights Committee, the body of independent experts that monitors the implementation of the ICCPR, has said that: ‘Defamation laws must be crafted with care to ensure that they … do not serve, in practice, to stifle freedom of expression. [...] Care should be taken by

132 but would have been able to be a member and it would have been reasonable for the defendant to be a member 133 Para 8, Schedule 3, Royal Charter on the self-regulation of the press. The standards code must include rules relating to:”a) conduct, especially in relation to the treatment of other people in the process of obtaining material; b) appropriate respect for privacy where there is no sufficient public interest justification for breach; and c) accuracy, and the need to avoid misrepresentation.” 134 This case proceeded to the European Court on an issue of whether prior notification about publication was necessary, and whether a fine for failure to do this would breach Article 10. (Mosley v UK, para 129)

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States parties to avoid excessively punitive measures and penalties. Where relevant, States parties should place reasonable limits on the requirement for a defendant to reimburse the expenses of the successful party.’135

Section 40 of the Act not only requires that a defendant pays the expenses of the successful party, it also establishes that the usual position will be that a defendant reimburses an unsuccessful party.

In practice, this will mean that when a publisher is threatened with court proceedings, the assumption will be that it will not just have to pay its own costs, but that it will have to pay the other side’s too. When these are likely to amount to tens or hundreds of thousands of pounds (in a jurisdiction which is already one of the most expensive on earth136), it is easy to see why a defendant is likely to refrain from publishing the material, retract it, apologise, or quickly agree to pay damages, even where no tort had been committed. This will clearly have a chilling effect on free speech.

The MPs expenses scandal affected a significant number of parliamentarians and, as a matter of law, the European Court of Human Rights has said that limits of acceptable criticism are wider for politicians than for private individuals.137 The Daily Telegraph, which led the expenses investigation, does not belong to a recognised regulatory body. Under the post-Leveson regime, and due to the cost implications of multiple claims, it would have found itself having to decide whether to publish only the most egregious expenses claims, rather than exposing the significant and very large number of MPs involved.

With cost-shifting, the Daily Telegraph could have been liable for the costs of a defamation action for every MP who decided to litigate a claim against it. This would occur despite the fact that the Telegraph could argue a clear public interest case. Under the post-Leveson regime, because it had decided not to join the state-recognised regulator, it would find itself paying the full costs of MPs who had no case to argue under the law of libel.

The chilling effect of such potential costs lies in multiple actions by separate individuals. The Telegraph would need to decide whether it could fund hundreds of separate libel actions from all the MPs mentioned in its coverage and pay the entirety of the costs accruing, even in the event that it won every single case. Clearly, the cost to any commercial publisher would be enormous and a significant deterrent to publishing award- winning journalism that is clearly of a matter of the utmost public interest.

135 Human Rights Committee, ‘General Comment 34. Article 19: Freedoms of opinion and expression’ (12 September 2011) Para 47 136 A comparative study of costs in defamation proceedings across Europe by the Programme in Comparative Media Law and Policy Centre for Socio-Legal Studies, University of Oxford (December 2008) 137 Lingens v Austria, (Application no. 9815/82)

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RIGHT TO A FAIR TRIAL Section 40 of the Act restricts rights to a fair trial as well to freedom of expression. It does so in two ways: it virtually compels arbitration by threatening huge costs awards against those publishers who do not subscribe to a recognised regulator, which must offer this service; and it makes access to the court unaffordable in practice for those smaller and medium sized publishers which are ‘relevant publishers’ under the Act.

The default position for relevant publishers, which are not members of a recognised regulator, and which are taken to court, is that they will have to pay the claimant’s costs as well as their own, irrespective of whether they win or lose. This raises the possibility of a publisher doing nothing wrong, acting entirely within the bounds of the law, and being severely financially punished.

This goes significantly further than the Leveson recommendation on cost, which was that ‘The Civil Procedure Rules should be amended to require the court, when considering the appropriate order for costs at the conclusion of proceedings, to take into account the availability of an arbitral system set up by an independent regulator itself recognised by law.’

The purpose of Leveson’s recommendation was ‘to provide an important incentive for every publisher to join the new system and encourage those who complain that their rights have been infringed to use it as a speedy, effective and comparatively inexpensive method of resolving disputes’.138 The provision effectively forces people to use arbitration. Arbitration is akin to a private court, and using it precludes the parties going to court (except on limited grounds). It has been long established that courts cannot force people to use arbitration as this would breach Article 6 of the ECHR (the right to a fair trial).

Furthermore, the courts have consistently upheld the principle that the ECHR is intended to guarantee practical and effective rights139. The European Court of Human Rights has said in respect of Article 6 that ‘It is central to the concept of a fair trial, in civil as in criminal proceedings, that a litigant is not denied the opportunity to present his or her case effectively before the court … and that he or she is able to enjoy equality of arms with the opposing side’.140 Section 40 of the Act will prevent small and medium sized publishers from effectively defending their right to free expression in breach of Article 6.

138 Leveson recommendation no. 72 139 Airey v Ireland, (Application no. 6289/73), judgment of 9 October 1979, ECtHR and Steel and Morris v UK (Application no. 68416/01), judgment of 15 February 2005, ECtHR. 140 p.59, Steel and Morris v UK (Application no. 68416/01), judgment of 15 February 2005, ECtHR.

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RIGHT NOT TO BE DISCRIMINATED AGAINST The law discriminates between types of publisher rather than conduct. It punishes those who are relevant publishers for not joining a recognised regulator and thereby signing up to its standards code; those who are not relevant publishers are not punished for not signing up to such a code. This specifically puts limits on the freedom of expression of the press, which is afforded particular protection under Article 10 of the ECHR.141 Furthermore, Article 14 of the ECHR prohibits discrimination in respect of convention rights, on any grounds. The Act clearly breaches this rule.

Bob Satchwell expressed this concern to the House of Lords Communication Committee: ‘I thought that we were all supposed to be equal under the law but this would create an unequal legal regime. People who for whatever reason had not joined the approved regulator would be treated differently; they could commit the same “offence”, as it were, and it would cost an awful lot more.’142

This is important in practice as well as in theory. If different types of publisher have to abide by different laws, this makes for an uneven playing field, particularly when it comes to news published on the internet. British newspaper websites, which will be relevant publishers for the purposes of the Act, compete with broadcasters’ websites which are not, and with a host of other types of site which may or may not be relevant publishers. Relevant publishers could find it harder to compete with the extra constraints that the combination of the Act and the Royal Charter place upon them.

3.5 THE PRESS RECOGNITION PANEL A Press Recognition Panel (the Panel) has been set up following the processes set out in the Royal Charter. Its role is to determine which, if any, press regulators can become ‘recognised regulators’. To do this, the recognition panel can assess applications from press regulators who seek formal recognition, according to the criteria laid down in the Charter.

The Panel will be publicly funded for the first three years of its existence, after which it will generate its operational income from fees for recognition.143 The Panel has so far received a lump sum of

141 p.334, Equality & Human Rights Commission, Human Rights Review 2012, http://www. equalityhumanrights.com/sites/default/files/documents/humanrights/hrr_article_10.pdf 142 Answer to question 39, Evidence Session 2, 20 January 2015, House of Lords Communications Committee http://www.parliament.uk/documents/lords-committees/communications/Pressregulation/ PREvidence.pdft 143 Answers to Question 5, Evidence Session 1, 13 January 2015, House of Lords Communications Committee, Dr. David Wolfe QC, http://data.parliament.uk/writtenevidence/committeeevidence.svc/ evidencedocument/communications-committee/press-regulation/oral/17591.html

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£900,000 funding, which covers an unspecified period of time144 and therefore an unspecified amount of work. This enormous amount of public money is being spent to set up a system which no major publisher has yet said it intends to join (and in fact many have publicly said they will not, on a matter of principle).

According to the Panel, some smaller publishers have expressed interest in joining, including some who do not appear to be relevant publishers, but who would like to receive the benefits of being a member of a recognised regulator (that is, less exposure to exemplary damages and more protection from punitive costs in legal proceedings).145 Given that there is a way of doing this without any charge to the public purse – by repealing the Crime and Courts Act and using existing costs rules – the outlay on the panel seems hugely disproportionate.

144 Ibid 145 Para 25, Press Recognition Panel board minutes, 26.5.15, http://pressrecognitionpanel.org.uk/wp- content/uploads/2015/07/07-Panel-Board-Meeting-26-May-2015-Final-02-PUBLIC1.pdf

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CHAPTER 4. THE WIDER IMPACT This chapter looks at the fact that the UK has abandoned the principle of self-regulation at a point when international experts and international human rights bodies have all re-asserted the importance of the principle of a self-regulated press. The statutory regulation passed in the aftermath of the Leveson report places the UK in a minority among advanced democracies for its regulation of the print media. The UK now has a system which breaches international norms. It flies in the face of statements from the UN Human Rights Committee and special rapporteurs on free expression from the OSCE and the Organisation of American States, setting an example to the world’s autocrats and dictators.

4.1 SELF-REGULATION: THE INTERNATIONAL NORM Self-regulation of the printed press is the principle defended by international bodies and the standard that NGOs working internationally seek. In Europe, as the Leveson Report admitted, the vast majority of countries operate a form of self-regulation.146 This is underpinned by Resolution 1636 (2008) from the Council of Europe’s Parliamentary Assembly, which oversees the European Court of Human Rights. The resolution, on indicators for media in a democracy, is clear that the press should set up its own regulatory body and journalists set up their own professional codes of conduct. 147

The Independent Press Standards Organisation (IPSO), to which the majority of the national press has signed up, is unlikely to seek recognition. It would be difficult to argue that an alternative regulator not backed by either the majority of the press, nor journalists themselves, but given recognition by a state-backed panel could be seen as genuine self-regulation. This places the UK in the rare position as an established democracy of ending self-regulation of the printed press.

The international context is clear. Most established democracies enjoy a self-regulated press. ARTICLE 19 says: ‘It is notable that most established democracies do not have a law which imposes specific regulatory measures on the print media. This is due to a deliberate policy to prevent unnecessary regulation and to distinguish the press from the broadcast media, where different considerations apply.’148

146 The Leveson Report, Part K, Chapter 5, 2.5. 147 Council of Europe Parliamentary Assembly, Resolution 1636 (2008), http://assembly.coe.int/Mainf. asp?link=/Documents/AdoptedText/ta08/ERES1636.htm 148 ARTICLE 19, “International Standards: Regulation of the print media” (5 April 2012), https://www. article19.org/resources.php/resource/3023/en/international-standards:-regulation-of-the-print-media

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Self-regulators can impose penalties (including fines) on their members for breaches of their standards without the problems for free expression that state mandated regulators bring.

The principle of self -regulation has been upheld by both the UN Human Rights Committee, when it criticised Lesotho’s newspaper regulation and the UN Committee on the Rights of the Child in an opinion on Uzbekistan’s licensing requirements. Analysis by ARTICLE 19 demonstrates that state-enforced licensing of the print media is a violation of the right to freedom of expression: ‘For the same reasons as apply in the context of licensing of individual media workers, a licensing scheme for the print media which allows for permission to publish to be refused is a breach of international guarantees of the right to freedom of expression.’149

It is not just licensing that has been criticised by international watchdog bodies. In an important joint statement of the UN’s Commission for Human Rights Special Rapporteur on freedom of opinion and expression, the Representative on freedom of the media of the Organization for Security and Cooperation in Europe (OSCE), and the Special Rapporteur on freedom of expression of the Organization of American States (OAS) the experts stated:

‘Imposing special registration requirements on the print media is unnecessary and may be abused and should be avoided. Registration systems which allow for discretion to refuse registration, which impose substantive conditions on the print media or which are overseen by bodies which are not independent of government are particularly problematical.’150

The post-Leveson regime in the UK fails in all three regards: the regime allows a recognised regulator to refuse membership to a publisher, and such publishers may be deterred from publishing due to the punishments in the Crime and Courts Act; the legislation imposes substantive conditions which are designed to apply to ‘relevant publishers’, which is primarily made up of the print media; and the Press Recognition Panel is not independent of government due to its creation by the Royal Charter (an instrument of the executive).

The failure of the post-Leveson regime to uphold global standards has been noted by international bodies and NGOs. The OSCE Representative on Freedom of the Media Dunja Mijatović was heavily critical of the Royal Charter, saying that ‘Voluntary self-regulatory

149 ARTICLE 19, ibid. 150 Office of the United Nations High Commissioner for Human Rights press release, “International experts condemn curbs on freedom of expression and control over media and journalists” (18 December 2003)

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schemes should be preferred to government-mandated ones’, adding that ‘additional state interface of any kind except supporting voluntary agreements’ was ‘inherently wrong’.151

4.2 INTERNATIONAL RESPONSE The response from the world’s foremost freedom of expression and press freedom NGOs has been similarly critical with the Committee to Protect Journalists,152 PEN,153 Index on Censorship,154 International Press Institute, the World Association of Newspapers and News Publishers (WAN-IFRA) and the World Press Freedom Committee155 all condemning the Royal Charter and the end of press self-regulation. Since Leveson, the UK has fallen three places in the 2014 World Press Freedom Index, compiled by Reporters Without Borders.

The World Association of Newspapers said: ‘There has been a real lack of public discussion about the implications of the issues raised by the Leveson Inquiry and their effects – positively or negatively – for freedom of expression in the United Kingdom’156. It criticised the haste and lack of transparency and consultation in the attempts to implement the Leveson recommendations.

ARTICLE 19’s analysis of the Royal Charter described the regulation not as ‘self-regulation’ (as claimed by its supporters) but as a ‘co- regulatory’ system157. A similar co-regulatory system, introduced in Hungary in 2011, was widely viewed as a severe restriction on free media and criticised by the US State Department, the OSCE and EU. Co-regulation is an unusual model in democratic states, the following exploration of the Hungarian model will show why this is the case.

Many of the criticisms of Hungary’s draconian system of media regulation could similarly be applied to the post-Leveson regime. The media and press law was passed in December 2010 and has been severely criticised by the Council of Europe,158 the OSCE159 and the European Parliament,160 for the excessive control given to statutory

151 OSCE Representative on Freedom of the Media Monitoring UK Policy, LSE Media Policy (21 May 2013) http://blogs.lse.ac.uk/mediapolicyproject/2013/05/21/osce-representative-on-freedom-of-the-media- monitoring-uk-policy/ 152 CPJ, UK urged to reconsider post-Leveson media proposals (2 April 2013),https://cpj.org/2013/04/uk- urged-to-reconsider-post-leveson-media-proposal.php 153 English PEN, Response to announcement of Royal Charter (18 March 2013), http://www.englishpen. org/campaigns/response-to-announcement-of-royal-charter/ 154 Index on Censorship responds to the Royal Charter (21 March 2013), https://www.indexoncensorship. org/2013/03/index-responds-to-the-royal-charter/ 155 IFEX, World’s media call on Queen to reject U.K.’s royal charter (28 October 2013), https://www.ifex. org/united_kingdom/2013/10/28/reject_charter/ 156 Press Freedom In The UK, WAN-IFRA (March 2014) http://www.wan-ifra.org/articles/2014/03/14/ published-today-uk-press-freedom-report 157 UK: Draft Royal Charter on Self Regulation of the Press and Amendments to the Crime and Courts Bill, ARTICLE19 (March 2013) http://www.article19.org/data/files/medialibrary/3687/13-04-02-LA-uk.pdf 158 Council of Europe, “Expertise by Council of Europe experts on Hungarian Media Legislation” (11 May 2011), http://www.coe.int/t/dghl/cooperation/media/publications/Hungary/Hungary%20Media%20Acts%20 Analysis%20-%20Final%2014-05-2012%20%282%29.pdf 159 OSCE Representative on Freedom of the Media, “Despite adjustments, Hungary’s media law continues to violate OSCE commitments” (8 March 2011), http://www.osce.org/fom/75999 160 EU Parliament, Resolution on media law in Hungary (10 March 2011), http://www.europarl.europa.eu/ sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2011-0094+0+DOC+XML+V0//EN

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bodies. The Hungarian model of ‘co-regulation’ bears striking similarities to the post-Leveson regime, with the statutory Media Council (similar in scope to the UK’s Ofcom) granting a form of recognition to a press council that the government described as form of self-regulation with statutory underpinning. The OSCE’s Representative on Freedom of the Media, Dunja Mijatović noted: ‘Print media should be self-regulated and not under the jurisdiction of the regulatory body.’

This position is backed by a comprehensive assessment of the Hungarian media law by experts on behalf of the Council of Europe who remarked: ‘The Law seeks to place statutory obligations on print media contrary to best practice not only in Europe, but globally, where the press is encouraged to regulate itself.’

Hungarian newspapers that refused to sign up to the regulator faced fines of up to €727,000 for breaches of the law, while newspapers who join the approved regulator face no such fines, with clear similarities to the exemplary damages and cost-shifting enabled by the Leveson legislation (as outlined in Chapter 3).

Hungary’s regulator also acted as an arbiter on media complaints – with newspapers joining the regulator seeing complaints dealt by the regulator rather than through the judicial system. Co-regulation closed the space for independent self-regulation due to the fines for newspapers who refused the join the regulator.

The Council of Europe’s expert opinion on the model of co-regulation could have been written about the post-Leveson regime: ‘Impediments to industry self-regulatory bodies may well raise issues under the ECHR. Unless a convincing case can be made that needed self-regulation has failed, co-regulation can amount to interference contrary to CoE standards. In this connection, Act CLXXXV [the Hungarian media law] sets out very stringent conditions whereby self-regulatory bodies act as effective subcontractors of the Media Council, undertaking certain tasks of the Media Council under a detailed and constraining administrative agreement. The Media Council has the right to supervise and audit the operations of self-regulatory bodies in such a way as to deny them any independence or autonomy.’

It is clear, in the view of the experts, that the recognition of a regulator in the Leveson context, if it undermined the functioning of an existing self-regulatory body, could raise issues with the ECHR.

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Indeed, there is a clear parallel between the Hungarian system and the post-Leveson regime. In Hungary, a press regulator recognised by the Media Council, must undertake certain administrative and civil law functions. This mirrors the post-Leveson regime where the Press Recognition Panel under the terms of the Royal Charter demands any recognised regulator performs certain administrative and civil law functions, such as checking compliance with standards and providing an arbitration scheme.

4.3 THE INTERNATIONAL IMPACT ON PRESS FREEDOM The impact of a noted democracy abandoning 300 years of self- regulation for the printed press with little parliamentary debate had already been felt globally. Supporters of the post-Leveson regime have refused to acknowledge the harm the report caused internationally, where it has already been used as a precedent or justification for policies harmful to media freedom. This section will illustrate how Britain’s failure to defend self-regulation has set a harmful precedent that will impact on media freedom throughout the world.

International NGOs have been highly critical of the post-Leveson regime. Reporters across the globe too have reacted with alarm at the Royal Charter, and the impact that undermining of the principle behind self-regulation could have in their countries. The Editors’ Guild of Sri Lanka warned after the passage of the Crime and Courts Act that: ‘The almost draconian legislature contemplated in the United Kingdom would serve oppressive governments around the world, and especially in the Commonwealth with a convenient example to maintain tight controls over an independent media.’161

The introduction of a number of extremely unhelpful precedents in an established democracy, as well as the attack on self-regulation, are of particular concern internationally.

The costs rules introduced by the Crime and Courts Act are especially troubling. Would advocates of the post-Leveson regime be content if the Russian courts forced newspapers to pay the costs of government officials or oligarchs in the event of a defamation action that the newspaper won, if they refused to sign up to a recognised state-backed regulator? Would they be happy with fines amounting to 1% of turnover if the state-recognised regulator took against a particular publication? Clearly, the precedents set in the UK could pose a significant threat to press freedom globally.

161 Comment from The Editors’ Guild of Sri Lanka, CPU Media Trust (July 2013) http://www.cpu.org.uk/ page-view.php?pagename=Leveson-Sri-Lanka-Comment

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The Editors’ Guild of Sri Lanka was right to be concerned. Not long after their warning, in June 2013, President Mahinda Rajapaksa began drafting a government media code of ethics for Sri Lanka’s press. This proposed ‘Code of Media Ethics’ was criticised by the Committee to Protect Journalists, which noted that: ‘A government-mandated code of ethics, no matter how lofty in tone, is just another tool to crush what is left of the country’s independent media.’162 Henry Gomba, a Ugandan journalist, told The Australian that African Commonwealth countries would seize on statutory regulation in the UK, saying ‘They already have legislation controlling the press in many countries and if Britain goes down that path, it will be used as an excuse to make things even worse.’163 Within a year of the legislation passing. Kenya debated a draconian new media law that would impose state regulation of the press with significantly increased fines.164

In Ecuador, President Rafael Correa, facing criticism for police raids on opposition newspapers and costly lawsuits against publications for ‘moral damages’, likened his actions to the Leveson Inquiry, commenting: ‘Do we have an unwritten law that we can’t sue a journalist? Since when? So nobody should sue Murdoch and his partners in crime in Britain?’165 Correa’s political allies voted through a new media regulation system in June 2013, which raised the spectre of government definition of the public interest and even the power to force newspapers to publish stories the state deemed to be in the public interest.166

In Bulgaria, the deputy head of the most important parliamentary group (GERB), Krassimir Velchev, has called for a new media law covering the print media and online publication. This would include clauses regulating the specific penalties journalists will incur for defamation, placing the burden of costs on journalists themselves, rather than the publishers.

With press freedom in ‘drastic decline’ globally – according to the latest Reporters Without Borders’ World Press Freedom Index – the UK should be setting an example. Instead, the post-Leveson regime has set a precedent that has undermined the EU’s tough stance on Hungary’s draconian media law and been used by other governments as cover for new illiberal media laws. The undermining of emerging international norms around self-regulation of the printed press could be the lasting legacy of the post-Leveson regime. This would be a significant step backwards for press freedom.

162 Sri Lanka tries new ways to crush independent media (7 June 2013) http://cpj.org/blog/2013/06/sri- lanka-looks-for-new-ways-to-crush-independent.php 163 British editors fear post-Leveson world, The Australian (29 October 2012) http://www.theaustralian. com.au/media/british-editors-fear-post-leveson-world/story-e6frg996-1226504902737 164 Index on Censorship, “Kenyan media prepare to battle new press laws” (27 January 2014), https:// www.indexoncensorship.org/2014/01/kenyan-journalists-prepare-battle-new-press-laws/ 165 Rafael Correa hits back over Ecuador’s press freedom and charge of hypocrisy, The Guardian (24 August 2012) http://www.theguardian.com/world/2012/aug/24/rafael-correa-assange-ecuador-press 166 Stop Press! The Economist, (18 June 2013) http://www.economist.com/blogs/americasview/2013/06/ freedom-speech-ecuador

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5. RECOMMENDATIONS Press regulation is at a critical juncture. On 3 November 2015, exemplary damages will be available under the Crime and Courts Act 2013167. The Press Recognition Panel has already announced it is ready to accept applications for recognition from regulators: one, IMPRESS, has said it will seek recognition. Once this happens and the Secretary of State has made the necessary commencement order, the costs provisions in the Crime and Courts Act will also be triggered168. Relevant publishers will then face huge costs for not signing up, creating a barrier to free expression in the press and chilling free speech.

The UK government should re-assert the importance of self-regulation both in the UK and internationally with a binding commitment to free speech:

To protect the freedom of the press, the following urgent action is required: 1. Repeal s.34 to 42 of the Crime and Courts Act 2013. 2. Annul the Royal Charter on the Self-Regulation of the Press. 3. Introduce a statutory public interest defence for all relevant civil and criminal legislation including the Official Secrets Act, Regulation of Investigatory Powers Act, Bribery Act and the Computer Misuse Act. 4. Amend the ICO Guide to Data Protection with a wider definition of public interest in line with recommendation 3, while making clear that any such definition cannot be exhaustive. The circumstances in which remedies can be sought under the DPA should be clarified so that the ICO does not become a vehicle (as opposed to libel proceedings) for parties seeking injunctions rather than damages. 5. Ensure any amendment to the Human Rights Act, or a new British Bill of Rights, includes a Right to Freedom of Expression to protect press freedoms and free expression in the UK, and setting the standard internationally for guaranteed free speech.

6. CONCLUSION A free press is a marker of a thriving democracy. Until the Leveson Inquiry, the UK had taken a series of steps, over many years, to try to guarantee and protect this right.

The Leveson process, conceived in response to a specific crisis, quickly became a tool for a determined group of lobbyists to use regulation to erode press freedom. The inquiry was unable to investigate phone hacking, the issue at its core. Many of the recommendations which emerged demonstrated a disregard for the importance of a free press and

167 Section 61(7) , Crime and Courts Act 2013 says ‘Sections 34 to 39 [re exemplary damages] come into force at the end of the period of one year beginning with the day on which a body is established by Royal Charter with the purpose of carrying on activities relating to the recognition of independent regulators of relevant publishers (as defined by section 41).’ The Press Recognition Panel was formally established on 3 November 2014. 168 If s.40 of the Crime and Courts Act 2013 has been commenced by secondary legislation.

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free speech, both of which are critical to uphold in a democratic society. The inquiry concerned itself almost solely with national newspapers. Local newspapers, magazines and online news providers, all of which are adversely affected by the Leveson recommendations, were barely consulted.

The rushed post-Leveson negotiations, including those around the use of the Royal Charter mechanism, were not fitting for a debate that has long- term consequences for freedom of expression in the UK and beyond. The Royal Charter itself, which can only be changed by a two-thirds majority in both Houses of Parliament, is controlled and funded by politicians.

The legislation severely punishes some publishers for not subscribing to a recognised regulator, which must have a standards code, offer free arbitration for claimants, be able to direct the publication of an apology and impose fines of up to £1million pounds (or one per cent of turnover) upon its members. The punitive legislation makes joining this system quasi-compulsory.

Furthermore, both the exemplary damages and costs provisions restrict the right to freedom of expression unlawfully, breaching Article 10 of the ECHR, and the costs provision breaches Article 6 both by imposing arbitration and by limiting access to a fair trial for many publishers. In discriminating between different types of publisher the legislation also appears to breach Article 14.

International human rights experts say that imposing special requirements on the print media is unnecessary, open to abuse, and should be avoided. Self-regulation of the press is the gold standard, and is supported by international bodies including the Council of Europe.

The impact of the post-Leveson regime is being felt internationally, attracting criticism from international free expression watchdogs. The UK now has a voluntary self-regulator in IPSO, which covers virtually all of the popular press.

Action must be taken now to protect the freedom of the press. In November, the chilling legislation will start to bite and publishers will be less free to speak truth to power. To prevent this, the relevant parts of the Crime and Courts Act must be repealed and the Royal Charter annulled. To further protect the freedom of expression of the press, a public interest defence should be introduced in all relevant statutes, the current position of requiring court orders for the police to access journalistic material must be retained, and the definition of the public interest in advice from the Information Commissioner’s Office concerning data protection must be broadened.

68 CONTRIBUTORS

PROFESSOR TIM LUCKHURST

Tim Luckhurst is the Professor of Journalism at the University of Kent, and the founding head of the university’s Centre for Journalism. He is a former BBC journalist and was editor of The Scotsman. He has written about topics including politics and the media industry for the Guardian, Independent, Times, Toronto Globe and Mail, Los Angeles Times and The New Republic. His research focuses on the history of journalism and, in particular, on the depiction of political dissent in British and American newspapers during the Second World War. He is the author of a number of prominent publications including Responsibility Without Power: Lord Justice Leveson’s Constitutional Dilemma (Abramis Academic,2012).

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HELEN ANTHONY Helen Anthony is a qualified, non-practising solicitor who works as a freelance policy consultant. Helen has advised English PEN on issues relating to the Leveson Inquiry, free speech and access to justice since 2012. She is the author of English PEN and Index on Censorship’s report The Alternative Libel Project, published in March 2012, funded by the Nuffield Foundation, which made recommendations to changes in procedural and costs rules to reduce the cost of libel cases in England and Wales. Helen has worked as a legal policy officer for the Association of Personal Injury Lawyers, and more recently carried out policy development work for a range of organisations concerned with the issue of free speech.

MIKE HARRIS Mike Harris is CEO of 89up, a campaigns agency that promotes freedom. He is a noted expert on freedom of expression, as former Head of Advocacy at Index on Censorship, and has given expert opinion to a number of international bodies. Mike is an advisor to the Libel Reform Campaign and managed the campaign since its inception in 2009, until the passage of the Defamation Act in 2013. He has run high-profile campaigns defending freedom of expression in Belarus and Azerbaijan and is the author of a number of reports including ‘The EU and freedom of expression’; ‘Burma: Freedom of Expression in Transition’ and was a contributor to Palgrave Macmillan’s book ‘Media Law and Ethics in the 21st Century’.

PADRAIG REIDY Padraig Reidy is Director of Editorial at 89up, with a decade's experience of in journalism. He was formerly News Editor at Index on Censorship and led Index’s policy response to the Leveson Inquiry. He has written for the Guardian, The Observer, The Irish Times, The Daily Telegraph, The New Statesman and The Sun.

SASHY NATHAN Sashy Nathan is Director of Advocacy and in-house counsel at 89up. He has a background in civil liberties law, defending activists in politically-sensitive cases at Bindmans LLP. He has worked with international NGOs including Save the Children International and the Commonwealth Human Rights Initiative.

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