Leveson Report: Distortion of the debate – Edward Craven

Confusion and obfuscation are distorting the debate about the future of press regulation in the UK. At the heart of this distortion lie misunderstandings – and in some cases intentional misrepresentations – of what the Leveson Report actually recommends. As a result, advocates on both sides are arguing at cross-purposes, while the substance of the Leveson proposals is in danger of being drowned out by a welter of misinformation.

What does Leveson recommend?

The model of regulation favoured by Leveson is one of “independent self regulation”. Under this model, the press industry would establish its own independent regulatory body (or bodies – nothing would prevent the press establishing more than one regulator). Parliament and Government would have no role in creating any regulator, which would be set up and run without any legislative decree or executive oversight.

Participation in any new body would be entirely voluntary – no publisher would be forced to sign up. Parliament’s role would be limited to passing a law mandating an independent “reviewing body” (the Report suggests Ofcom would be the best candidate) to conduct periodic assessments of the new regulator. Those assessments would certify the regulator’s performance against various criteria relating to independence, structure, remedial powers and effectiveness. But while the criteria would be contained in a statute, they would not be binding on the regulator or any publisher. Instead, a positive certification would trigger certain benefits for publishers signed up with the regulator – most notably significant costs and damages advantages in civil litigation.

Crucially, the reviewing body would not play any role in regulating publishers, nor would it have any power to punish or close down a regulator that falls short of fulfilling the statutory checklist.

Statutory underpinning – the bogeyman of state control

The role of statute in the Leveson proposals is therefore limited to providing a system of review and incentives to encourage the press to establish their own independent, fair and effective regulator. However some opponents have seized upon the prospect of limited statutory underpinning to raise the spectre of statutory press regulation or ‘state control’ – the implication being some kind of direct government control over the regulator or, worse still, individual publishers.

There are several reasons why statutory underpinning would not entail ‘state control’ in this sense:

• First, the proposals do not involve the creation of a statutory regulator. Under the Leveson model, legislation would be used to create a system of incentives to encourage publishers to subscribe voluntarily to an independent regulator that fulfils certain criteria. However no Act of Parliament would:
  • establish a statutory press regulator;
  • compel the press to establish a regulator;
  • compel any publisher to join a regulator;
  • compel an independent regulator to act in a particular way; or
  • empower the reviewing body to sanction an independent regulator or to regulate individual publishers.
• Second, the use of statute does not automatically equate to ‘state control’ in the sinister, press-muzzling sense. The press – like everyone else – is already subject to legal controls on what it may do and publish, much of which is enshrined in statute. The Contempt of Court Act, Data Protection Act, Official Secrets Act, the law of defamation and privacy and the criminal law – all bind the press just as they bind individuals, companies, public officials and state bodies. It has never been suggested that the press should enjoy total immunity from all legal constraints. It is therefore the content of legislation, rather than its mere use, that is critical.
• Third, the ‘slippery slope’ argument (the suggestion that a limited role for statute will open the door to more obtrusive state interference in future) is unsubstantiated and difficult to reconcile with experience in other areas. Judicial appointments, for example, are subject to the provisions of the Constitutional Reform Act 2005. Yet no-one has suggested that the independence of the judiciary – a cornerstone of the British constitution – has been eroded by this arrangement.

It is therefore inaccurate to characterise the Leveson proposals as a type of ‘statutory regulation’ or a sinister threat to press independence. The judge was at pains to make this clear in his Executive Summary:

“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. What is proposed here is independent regulation of the press organised by the press, with a statutory verification process to ensure that the required levels of independence and effectiveness are met by the system in order for publishers to take advantage of the benefits arising as a result of membership.”

The Report does raise the possibility of Ofcom operating as a direct ‘backstop regulator’ in the event the press fail to establish an effective system of self-regulation. That certainly would be statutory regulation. However this does not form part of Lord Justice Leveson’s recommendations, and is clearly not an outcome that the judge wants to see:

“In the light of all that has been said, I must recognise the possibility that the industry could fail to rise to this challenge and be unable or unwilling to establish a system of independent self-regulation that meets the criteria. I have made it clear that I firmly believe it to be in the best interest of the public and the industry that it should indeed accept the challenge. What is more, given the public entitlement to some accountability of the press, I do not think that either the victims or the public would accept the outcome if the industry did not grasp this opportunity. Neither do I think the public would find it acceptable if I were to overlook the consequences of the industry doing so.

For the sake of completeness I have therefore set out in the Report the options that I believe would be open to the Government to pursue, and some views on the potential way forward, in that regrettable event: these include requiring Ofcom to act as a backstop regulator for those not prepared to join such a scheme. I have made no recommendation in relation to this situation, nor do any of the options in this paragraph amount to an outcome that I want to see.”

The way forward – the need for an honest debate

As the press regulation debate moves from the staid forum of a judicial inquiry to the bear pit of Westminster politics, it is important to keep sight of what has actually been proposed. Unfortunately, inaccurate characterisations of the Leveson proposals are clouding an important debate.

Of course the distortion is not all one-sided: legitimate anger at past wrongdoing can obscure the need for a press that is rowdy, irreverent and unquestionably independent. In addition to cataloguing press misdeeds, the Leveson Report highlights examples of tremendous investigative journalism and rightly emphasises the press’s important role as a source of entertainment as well as information. Advocates of reform must not overlook this.

Both the good and the bad in the Leveson Report demonstrate the power of the press to shape events and influence lives. With power comes responsibility. And with responsibility should come effective accountability without unnecessary constraint. How best to achieve this is a vexed question. One thing, however, is clear: the debate about the future of press regulation needs to be balanced and informed. Britain’s proud history of public interest journalism, and a genuine commitment to learn from the mistakes of the past, demand nothing less.

Edward Craven is a barrister at Matrix Chambers.