NMA SUBMISSION TO CONSULTATION ON THE LEVESON INQUIRY AND ITS IMPLEMENTATION: SECTION 40 AND LEVESON PART 2 Table of Contents I) Executive Summary Page 2 II) Section 40 Must be Repealed in its Entirety Now Page 4 III) PRP Decision to Recognise IMPRESS Under Legal Challenge Page 5 IV) An Unacceptable Restraint on Freedom of Expression Page 7 V) Evidence in Support of the NMA’s View Page 8 VI) The Impact of Section 40 on the News Media and Magazine Industry Page 10 VII) Full Commencement Will Not Incentivise Publishers to Join IMPRESS Page 15 VIII) The Leveson Inquiry Concluded Four Years Ago – There is no Public Value in Reopening It Page 16 IX) Lord Justice Leveson Himself Questioned the Value of Part 2 Page 17 X) A Total of 67 Journalists Arrested: 57 Cleared, 10 Convicted Page 18 XI) CPS Confirms No Further Action to be Taken Page 18 Appendix 1 NMA and Industry Background Page 20 Appendix 2 Legal Opinions Page 22 Appendix 3: Industry evidence Page 23 Appendix 4: Leveson Report Page 33 Appendix 5: IPSO: The Solution to Independent Self-Regulation for Britain’s Free Press Page 36 Appendix 6: PRP Decision to Recognise IMPRESS Under Legal Challenge Page 38 Appendix 7: Why Leveson 2 is Unnecessary - Specific Police and Media Reviews Page 55 Appendix 8: YouGov Opinion Poll results Page 58 Appendix 9: Correspondence between IMPRESS and NMA Page 59 Appendix 10: Profiles on IMPRESS CEO, Appointment Panel and Board members Page 62 Appendix 11: Examples of Stories that S40 would have Suppressed Page 70 Appendix 12: Selection of Coverage on Section 40 and Leveson 2 from Campaigners, Commentators and Newspaper Editorials Page 73 News Media Association, 292 Vauxhall Bridge Road, London, SW1V 1AE Tel: +44 (0)20 7963 7480 Email: [email protected] www.newsmediauk.org Twitter: @newsmediaorg The Newspaper Organisation Limited, trading as News Media Association, is a private company limited by guarantee registered in England and Wales. Registered office: 2nd Floor, 292 Vauxhall Bridge Road, London, SW1V 1AE. Registered number: 08963259 NMA SUBMISSION TO CONSULTATION ON THE LEVESON INQUIRY AND ITS IMPLEMENTATION: SECTION 40 AND LEVESON PART 2 I) Executive Summary 1. The News Media Association is the voice of Britain’s national, regional and local news media. Our members publish 1,100 titles read by 48 million adults a month, in print and online, including nearly 300 independent local newspapers. 2. The NMA calls for Section 40 of the Crime and Courts Act to be repealed in its entirety immediately. This piece of legislation seeks to enforce state licensing of newspapers and constitutes an unfair and undemocratic attack on free speech which would have a chilling effect on newspapers’ ability to report on matters of public interest. It would cost the national and local press an estimated £100 million a year for telling the truth. 3. This draconian law was introduced in the wake of the Leveson Inquiry as a stick to force British newspapers and magazines into joining a state-recognised regulator. International media and press freedom organisations struggle to understand how it ever found its way onto the statute books in a country traditionally held up as a bastion of free speech. 4. The Leveson Report recommended a system of “voluntary independent self-regulation,” envisaging “a body, established and organised by the industry” which “must be funded by its members”. Lord Justice Leveson said it should include all the major players in the industry – national newspapers and as many regional and local newspaper and magazine publishers as possible - “although I am very anxious that it remain voluntary”. 5. It appears that Section 40 was never certified as compliant with the European Convention on Human Rights before its parliamentary passage. The provision was rushed through Parliament without any proper scrutiny as to its meaning or implications. 6. The NMA’s legal advice is clear: Section 40 unfairly discriminates between different classes of publisher. It is in breach of the European Convention on Human Rights, contravening Article 10 (freedom of expression), Article 14 (arbitrary discrimination) and Article 6 (right to a fair trial). Our leading counsel Lord Pannick QC advises that “publishers have a strong claim that Section 40 is a breach of the ECHR.” (See confidential legal opinions Appendix 2) 7. The triggering of Section 40 by the Secretary of State could be successfully challenged in the Courts by judicial review, and consequently actions flowing from that could be challenged in the courts and in the European Court of Human Rights, in advance of an actual case in which the cost rules were applied, which itself could be challenged. 8. Section 40 is aimed at ‘incentivising’ publishers to join a state-recognised regulator. But even full commencement of Section 40, imposing crippling cost sanctions on those who do not comply, will not work. Not a single national, regional or local newspaper or magazine of any significance is willing, as a matter of principle, to sign up to any regulator recognised under the Royal Charter apparatus. No publisher will be cowed into submitting to statutory press regulation, however arms-length it may appear to be. 2 9. The only state-recognised regulator, IMPRESS, is in any case not a genuine regulator. It is far from impartial and independent, being funded and run by press reform campaigners and supporters of the Hacked Off lobby group who appear to have set it up purely as a device to trigger Section 40 costs sanctions against the press. 10. The IMPRESS chief executive, a number of its Board members, the chair of its code committee and even members of the appointment panel which selected the IMPRESS Board, have made clear their profound dislike of some of Britain’s most popular newspapers, with repeated public attacks – some of them personally abusive – supporting advertising boycotts on these titles and even calling for them to be banned from sale or closed down. It would be impossible for publishers to ever get a fair hearing from such an organisation. 11. The Leveson Inquiry into the culture, practices and ethics of the press was initiated nearly six years ago, in 2011, following the phone hacking scandal at the News of the World and in the aftermath of the MPs’ expenses scandal. There is simply no public value to be gained from reopening the inquiry and it should be terminated now. 12. The terms of reference of Part 2 of the Inquiry have either been overtaken by events or were already covered during the exhaustive Part 1 and the criminal investigations which together cost the taxpayer some £50 million. It would be time-consuming and hugely expensive to reopen the Inquiry and there is no public appetite for this. Just one per cent of people believe press regulation should be among the government’s priorities at the current time. (YouGov poll results: Appendix 8) 13. Lord Justice Leveson himself has questioned the value to be gained from embarking on Part 2 of the Inquiry which he pointed out would involve “yet more enormous cost” to the public purse and participants and the need to “trawl over material then more years out of date.” He thought it was likely to be even more time-consuming than Part 1 and has reportedly made it clear he has no wish to undertake another inquiry. 14. The police service has undergone significant reform since the Leveson Inquiry, particularly in its relationship with the media. The press has undergone significant changes. The News of the World was closed down. A large number of journalists were arrested. A small number of journalists were convicted and went to prison. There have been numerous police and media reviews and changes to the law. The Crown Prosecution Service has confirmed there is no further action to be taken. 15. The media regulatory landscape has changed. A tough new press regulator, the Independent Press Standards Organisation (IPSO) chaired by the former Court of Appeal judge Sir Alan Moses, replaced the Press Complaints Commission (PCC) in 2014. The vast majority of Britain’s press is regulated by IPSO, with 1,500 print and 1,100 online titles having voluntarily signed up to binding five-year contracts. IPSO’s members include Northern and Shell which had opted out of the former PCC and was seen as the main reason for devising the Section 40 ‘incentive’. 16. The only voices demanding that the Leveson Inquiry be reopened are the small, unrepresentative group of anti-press campaigners behind IMPRESS who have an agenda against some of the UK’s most popular newspapers and want to see them silenced or brought to heel. 3 II) Section 40 Must be Repealed in its Entirety Now 17. Implementation of Section 40 threatens the UK press and press freedom itself. Its implementation would fuel legal claims, however groundless, against publishers because any claimant would know that they were at no risk of costs if their action failed. Partial implementation would be discriminatory and have a chilling effect on journalism. Section 40 must be repealed in its entirety. 18. The costs provisions would require all publishers who have not submitted to a state- recognised regulator to finance all legal action wrongfully brought against them, at crippling expense. Such a regime would deter editorial investigation and reporting, since the costs of defending and winning cases could bankrupt and close down titles. 19. The NMA and our members remain implacably opposed to the system of state-approved press regulation under the Royal Charter for Press Self-Regulation, the Enterprise and Regulatory Reform Act 2013 and the Crime and Courts Act 2013.