As the debate surrounding press regulation focuses once more on the details of a royal charter, with the industry having failed in its judicial review, broader concerns about the post-Leveson regulatory framework, and its impact on freedom of expression, persist.
A structure that implemented Lord Justice Leveson’s recommendations for a recognition panel and formally accredited a regulator would work well if membership of such a regulator was truly voluntary. But publishers are being coerced into becoming members of a recognised regulatory body with the threat of court-imposed sanctions, following the introduction of the Crime and Courts Act 2013.
This act directs courts to treat publishers differently depending on whether they are members of a recognised regulatory body or not, with those outside the system facing the threat of exemplary damages and unduly punitive costs measures should they be taken to court. Furthermore, the act limits claimants’ rights to recover costs if they choose to take their case to court instead of following the regulator’s complaints and arbitration process.
These exemplary damages and punitive costs orders may breach the right to free expression embodied in article 10 of the European Convention on Human Rights, as a number of media law experts have already argued. Yet there is also a fundamental moral argument, alongside the protection of free speech: it is wrong for publishers to break no laws, and do no wrong, yet have to pay a substantial amount in someone else’s legal costs. This is what the provisions in the Crime and Courts Act permit.
Furthermore, the regulatory body is required to have a standards code with which members comply. This standards code must include provisions on conduct, privacy and accuracy. Again, this would not be problematic if membership of a regulator was voluntary, but as membership is de facto compulsory, this introduces the prospect of new laws being introduced by the back door. Leveson himself said there is no need for a new privacy law in this country; and yet there is a significant prospect of new privacy standards being imposed on publishers through the new regulator. This is hardly a democratic and transparent way of improving press standards.
One of the central measures of the new press regulation system is that complaints that cannot be resolved by publishers themselves will go to arbitration, where an independent expert will determine the outcome of the claim. Arbitration of complaints against the press is desirable, because it can provide a quicker and cheaper method of resolving the complaint than a lengthy and costly court process. But with limited procedural exceptions, arbitration results in a final and binding decision, with neither side then able to take the claim to court. The imposition of arbitration on both claimants and defendants is therefore likely to be in breach of article 6 of the European Convention on Human Rights, which safeguards access to justice by ensuring all parties have the right to have their case heard before an impartial tribunal. It is an accepted principle that forcing parties to arbitrate contravenes this right.
In addition, the proposed regulatory regime does not just affect the big hitters in the newspaper industry. The provisions of the Crime and Courts Act apply to publishers of news-related material written by different authors and subject to editorial control. Yes, there is a schedule of exemptions, including for broadcasters, charities, micro-businesses and others, but this is a piecemeal way of trying to exclude those whom press regulation was never meant to cover from falling within the legislation. If the government had consulted on the relevant provisions of the Crime and Courts Act instead of rushing them into the bill at the last minute, it might have concluded that it would have been better to have had an inclusive definition of who was to be covered by regulation, rather than including everyone and excluding a few. As it is, there is a significant risk that many smaller publishers will fall through the gaps in the legislation and find that they are unintentionally covered by the new regulatory regime.
Though the details of the royal charter are of less concern than the legislation which has already been passed, the act of granting the charter would present a bigger blow to freedom of expression. Without the charter, the objectionable legislative provisions about exemplary damages and punitive costs would lie dormant; it is the granting of the charter and the subsequent establishment of a recognition panel and recognised regulator that would trigger these.
Some journalism may not be to everyone’s taste and the tactics of certain journalists may cross the line of human decency, but surely the way to correct this is not to restrict the rights of publishers in the way that the royal charter and legislative framework surrounding Leveson propose. Two wrongs do not make a right.
Helen Anthony is a legal consultant to English PEN on libel reform and media freedom
This post originally appeared on the Guardian Media Blog and is reproduced with permission and thanks