“Prior protection”: Davies and Campbell are right – Carl Gardner

On 1 December 2011 Alistair Campbell blogged about his appearance and evidence to the Leveson inquiry.  He had plenty to say, but I won’t repeat it – read the transcript of his evidence, and the statement he provided.  What interests me especially is what he writes in that blogpost about the regime of regulation that should replace the PCC. He says

PCC replacement body should be established by Parliament but independent of all political and all current media interests. No serving political or media figures on it.

The PCC code is an excellent basis for a new code of standards, but should be reviewed to take account of the technological changes, eg internet, and of recent events examined by the inquiry.

It should have the responsibility, and the power, to see that the code is upheld. Including the power to fine owners, editors and journalists for serious breaches of the code. It should have the power to order placement and wording of corrections and apologies, and to adjudicate in cases where a right of reply is being refused.

Apologies should be given the same prominence as an inaccurate story, and the victim given a major say in how it is presented.

I agree with all that. This is just the kind of independent, effective statutory regulation that’s needed.

He says something else, though, with which I agree, if anything, even more strongly:

The replacement body might be the body to pre-adjudicate on privacy/public interest cases. I supported the idea Nick Davies of The Guardian had mentioned of a pre publication arbitration body to which journalists and the subjects of their stories could go for an opinion on the public interest.

This is an idea I’ve argued for before – I remember doing so in a BBC Radio Ulster discussion with Roy Greenslade and Max Clifford in May.

Most journalists recoil in horror at the suggestion of anything that smacks of “prior restraint” – the idea that stories should need approval from a judge before they can be published – or a duty to pre-notify stories to anyone whose privacy might be affected, as Max Mosley argued in the European Court of Human Rights, so as to allow them to rush to court before publication. But what I argue for, and I think what Nick Davies and now Alistair Campbell are suggesting, is quite different.

The idea is that newspapers should have the option of getting prior clearance of stories that might affect privacy or reputation. The system should be entirely voluntary. The system would involve the submission of the precise text of a story, with any photographs, audio or video to be published with it. The editor of the publication would explain the evidential basis of the story and what had been done to check it and provide an opportunity to comment – in other words, he or she would go through the “Reynolds” list of factors, explaining why the story amounts to responsible journalism. If the judge, or panel, or regulator agreed, the text and media approved, without alterations, could be published immediately.

Crucially, that publication would then be protected from any privacy claim, unless it could be proved that the regulator had been lied to at the clearance hearing. Any claim based on privacy or defamation would be struck out unless the claimant succeeded at a preliminary hearing in proving that the decision-maker was misled.

This is the opposite of prior restraint: in fact it’s what I’d call “prior protection”. I realise the system I’ve outlined raises many questions (could clearance be granted in an “ex parte” hearing, or would the subject of the article have to be given notice, for instance). But I think something like this could actually reduce the chilling effect on free speech that must result from uncertainty about the prospects of being sued.

Carl Gardner is a barrister and former government lawyer who writes about constitutional and public law, EU law and human rights.  This post originally appeared on his “Head of Legal” blog and is reproduced with permission and thanks.
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