mst_portfolioThe Media Standards Trust supports Lord Justice Leveson’s proposal for a voluntary system of independent regulation.  Lord Justice Leveson writes that the previous system of self-regulation, led by the PCC, “was simultaneously a panacea, a misnomer and a contradiction in terms” (1.4, p.1515).  He says

‘The PCC gave the public a false impression of what it could do and never acknowledged the limitations of its powers. Through acquiescent silence, the PCC permitted policy-makers and the public to make mistaken assumptions about the breadth and depth of the powers and capacity of self-regulation. It is damning of the PCC that it was only when the system of regulation was under unprecedented scrutiny and extreme threat, that a programme of reform was announced that asked questions of import directed squarely at the system’s failings’. (4.35, p.1538)

The judge finds, as did the Media Standards Trust 2009 report, A More Accountable Press, that the PCC was a complaints body, not a regulator.

We welcome the judge’s comments about the MST 2009 report. ‘In my view,’ Leveson writes, ‘this [the MST 2009 report] is a measured and punctilious critique of the PCC, justified on the then available evidence and made more prescient by subsequent events.’ (4.39, p.1539).

On the industry’s plan for reform

Lord Justice Leveson has also concluded that the proposal put forward by Lord Black and Lord Hunt for a new system of self-regulation ‘does not come close to delivering, in the words of the submission [of the industry] itself “regulation that is itself genuinely free and independent both of the industry it regulates and political control”’ (Leveson statement, 29-11-12).

The judge finds it ‘extraordinary that, given the acceptance by Lord Black and the newspaper industry that the current system of press regulation has lost public confidence, they did not regard public views on the matter as of sufficient interest or importance to make any effort to ascertain them’ (2.34, p.1621). We agree. He notes that ‘the proposal put forward by Lord Black gives no rights of any sort to the public’.

I have said many times,’ the judge notes, ‘that any new regulatory system must work for the public and for a system to work for the public it should have the rights and interests of the public at its heart. This proposal manifestly fails that test’ (2.41, p.1622).

The Media Standards Trust believes that any new proposal put forward by the press has to be held to the same test. It must, as Lord Justice Leveson said, work for the public and have the rights and interests of the public at its heart.

On independent self-regulation

Yet, despite his criticisms of the PCC and of the Hunt/Black plan, the judge does not suggest removing responsibility for devising and participating in a system of regulation from the press. Instead he recommends that the best solution would be a regulatory body, ‘established and organised by the industry, which would provide genuinely independent and effective regulation of its members and would be durable’ [his emphasis] (4.1, p.1758).

However, given that this is the seventh opportunity the press have been given to devise such as system in the last 70 years, Leveson does not believe this process can be left entirely without independent recognition. Moreover, in order to provide the press with legal incentives to participate in a new system of regulation, such a system must be effective enough to warrant recognition by the courts. Otherwise, how can the courts, Leveson asks ‘tell the difference between a properly constituted independent regulatory body meeting all the requirements set down in Section 4 and a body that fails to meet some or all of those requirements but nonetheless holds itself out as doing so?’ (6.2, p.1771).

Ensuring independence

Leveson therefore proposes an independent auditing process, by an independent ‘Recognition Commission’, to ensure that any new system that is established is independent and effective – from the perspective of the public, and so that the system benefits from legal recognition by the courts. In this process, the press would develop their own system which would then be verified by an independent body. Once verified, the members of that body would be able to take advantage of certain protections within the law.

This is similar to the process proposed in the Media Standards Trust submission to the Leveson Inquiry – A Free and Accountable Media (2012). In this submission the MST suggested the verification be done by a ‘Backstop Independent Auditor’ (BIA). It is important to note that, like the MST, Lord Justice Leveson makes absolutely clear that recognition is limited to process and ‘has nothing to do with issues relating to editorial content’.

On the need for legislation

Having reviewed many different options for this independent auditing process, Leveson concludes that legislation is necessary, but only to give authority to the process, and ensure its independence and effectiveness. The legislation would achieve two further purposes:

  1. To enshrine, for the first time, a legal duty on the Government to protect the freedom of the press
  2. To provide an independent process to recognise the new self-regulatory body and reassure the public that the basic requirements of independence and effectiveness were met and continue to be met
  3. By recognising this new body, validate its standards code and arbitral arm sufficient to justify the benefits in law to those who subscribe

The MST supports this limited use of legislation and agrees with Lord Justice Leveson’s assessment that; ‘Despite what will be said about these recommendations by those who oppose them, this is not, and cannot be characterised as, statutory regulation of the press’.

The press would continue to devise, fund, and participate in their regulation. There would be no government involvement in the regulator. The press would, for the first time, have a guarantee in law that the government would not seek to interfere with its freedom.

Without legislation it is very difficult to see how news organisations within a system of self-regulation could benefit from greater costs protection in the courts. It is also hard to envisage how any independent external body could be given the authority, the credibility, or the sustainability to audit a press self-regulator. Nor, without legislation, would the press gain explicit legal protection from interference by the government. We have shown, separately, the limitations of a similar system based purely on commercial contracts (see MST submission). Leveson also notes these limitations (p. 1637).

The law would not compel anyone to participate in self-regulation. It would not give statutory authority to the oversight of content, only process. It would not, and should not, create any opportunity for the government to exert any control on the press. We believe that the use of legislation for the purposes Leveson proposes is justified and necessary.

On who should be the independent auditor

Leveson suggests that the independent auditor could be Ofcom. He cites Ofcom’s regulatory expertise, experience and internationally high reputation. It would also, as an established regulator, be a less expensive option than giving authority to another body – existing or new –without equivalent media expertise.

However, the Chairman of Ofcom is appointed by the Secretary of State, and the Chief Executive approved by the Secretary of State (though appointed by the Chairman and non-executive Board members), and Ofcom regulates content as well as process. For this reason we are concerned about the recommendation to give Ofcom the role of independent auditor. The Media Standards Trust would rather a separate body, with clear distance from the government, be given this authority.

In the MST submission we suggested a new body, a backstop independent auditor, that would be appointed in a transparent and independent way, without any influence from industry or government. The UK has well recognised methods for making public appointments, which could be drawn on. The judicial appointments commission, the Public Appointments Commission, the Civil Service Commission all have long established processes for ensuring fair, open and independent appointments. The appointments process for the Recognition Commission should build on these processes. We are currently exploring different options for best achieving Lord Justice Leveson’s aim.

Allowing for more than one self-regulatory organisation

Lord Justice Leveson also recommends that ‘it should be possible for the recognition body to recognise more than one regulatory body, should more than one seek recognition and meet the criteria’. He does not advocate this since it would, in his view, be much better for there to be one body, but he recognises the need for such an option. This reflects the recommendation in the MST submission (and supplementary submission) to the Inquiry that it be possible to recognise more than one self-regulatory organisation.

Balancing a free press with individual rights and liberties

We appreciate the degree of thought that Lord Justice Leveson and the inquiry team have put into these recommendations. They are a measured and proportionate response to the significant quantity of evidence showing abuse of power by certain large news organisations against ordinary members of the public in a routine and systemic way. Throughout the report the judge makes reference to the balance that has to be struck between the fundamental need for a free press and the need to protect the individual rights and freedoms of the public. We believe that Lord Justice Leveson’s recommendations would balance these successfully.

The Leveson report and changes to existing law

The Leveson Report invites consideration and, if necessary, consultation by the relevant Ministries of certain sections of the Data Protection Act 1998 (DPA), the Criminal Justice and Immigration Act 2008 and the Police and Criminal Evidence Act 1984 (PACE).

The suggested changes are not formal recommendations of the Report. Nonetheless, they have significant implications for the conduct and operation of public interest journalism in the UK, and so the MST also sets out its position on these points.

Data Protection Act (DPA):

  • Paragraphs 48 and 49 of Leveson’s Summary of Recommendations concern the nature of exemptions for journalists in relation to data processing obligations in Section 32 DPA. While we agree with the report that the present Section 32 is open to abuse, the suggested reforms raise, in our view, real practical concerns for journalists legitimately using personal information to pursue stories in the public interest. We do not support changes to Section 32 of the DPA at this time.
  • We agree with Paragraph 50, which clarifies that the right to compensation for distress conferred by Section 13 DPA should include compensation for ‘for victims of data processing abuses’, rather than being restricted to cases of pecuniary loss.
  • Paragraph 54 proposes bringing into force the amendments to Section 55 DPA in Sections 77 (increase of punishments for data misuse) and 78 (enhanced defence for public interest journalism) of the Criminal Justice and Immigration Act 2008. We support such amendments, dependent on the nature and outcomes of any amendments to Section 32 DPA.

Police and Criminal Evidence Act (PACE):

  • Paragraph 68(a) of the recommendations suggests that paragraph 2(b) of Schedule 1 of PACE should be examined by the Home Office with a view to whether it should be repealed. This is in order to prevent obstruction of police investigations through the ‘camouflage of apparent co-operation’. Concerns have been raised that this amendment is unnecessary, and that it could be misused by police to gain production orders to gather evidence from news organisations and thereby threaten the anonymity of sources. These concerns do not, we believe, accurately reflect the recommendations of the report. Leveson has not recommended removal of Schedule 1, Paragraph 2(b) of PACE. He has, due to the alleged abuse of PACE, suggested that parts of the law be re-examined. We will observe that re-examination closely but do not see any benefit in pre-judging its outcome.
  • Paragraph 68(b) suggests amendment of Section 13(2) of PACE to provide a definition of the phrase “for the purposes of journalism” regarding the exclusion of journalistic material from the use of search warrants. Although definitions of journalism for legislative purposes of journalism are difficult, particularly in a convergent era, we have no specific objection to this aspect of the recommendation. Given the changing nature of journalism, however, we suspect that it may be difficult to achieve.
  • Paragraph 68(c) suggests amendment of Section 11(3) of PACE such that material held in confidence is only excluded from being obtained via search warrant if it is held subject to ‘an enforceable or lawful undertaking, restriction or obligation’. This has elicited criticism on the grounds that obtained material concerning corruption or material subject to the Official Secrets Act could not be considered as being ‘lawfully’ held in confidence.  Leveson notes the inconsistency in PACE between legal privilege (Section 10(2)) and ‘excluded materials’ (Section 11(1)), and also cites a further inconsistency between the Terrorism Act 2005 and PACE with regard to access conditions to confidential material. We agree with Lord Justice Leveson’s conclusion that the Home Office should re-examine PACE in light of these inconsistencies, but that appropriate consultation is essential to prevent any potential harmful consequences.

It is important to note that, contrary to some misleading news coverage, Lord Justice Leveson does not make recommendations for changes to the Police and Criminal Evidence Act (PACE). Given that he received evidence, from the Deputy Commissioner, showing that aspects of the Act were being abused and that other aspects were inconsistent with other laws, the judge would have been remiss in his duty had he not assessed PACE with that in mind.

Like Lord Justice Leveson, the MST does not believe that any changes should be made to PACE at this time, though we also recognise that there are aspects of the Act – such as the definition of journalism – that make it increasingly difficult to use in practice.

This post originally appeared on the Media Standards Trust website and is reproduced with permission and thanks