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On Leveson, language and topsy-turviness

A response to the Media Standards Trust's Martin Moore

By Padraig Reidy / 26 November, 2013

The Leveson Report is PublishedMartin Moore of the Media Standards Trust has written a long article for the New Statesman on the “topsy-turvy” world of the debate on press regulation and restrictions.

Moore undoubtedly makes some good points about the absurdity of some newspapers protesting potential political interference in the press while not raising a even the mildest objection to the government and secret services actual threats to the Guardian over its coverage of GCHQ surveillance techniques (similar points were made with elan by the Spectator’s Nick Cohen a few weeks ago).

The MST director berates newspapers for having “got the debate the wrong way round” both “in principle and in practice”.

But Moore and his comrades who support the Royal Charter, in the Media Standards Trust, Hacked Off, and individuals, themselves must take some blame for the topsy-turviness of the language around regulation.

Take the idea of “exemplary damages”, which, it is proposed, publications that do not sign up to a recognised regulator will be subjected to.

The pro-Royal Charter argument has been that the existence of exemplary damages, and the avoidance of them are “incentives” to join the regulator. They are not. They are a punishment for not joining the regulator. An incentive would suggest putting publications at an advantage; but under the current proposals, all that joining a regulator does is to put publications on a level footing with individuals or organisations who would not be considered subject to the regulatory scheme. An “incentive” to avoid default punishment is akin to a threat from a protection racket.

Further on in his article, Moore calls for a British version of the US’s First Amendment. It’s a  nice idea.

But Moore says that Lord Justice Leveson proposed a British First Amendment. This is not the case.

What Leveson recommended was this:

In passing legislation to identify the legitimate requirements to be met by an independent regulator organised by the press, and to provide for a process of recognition and review of whether those requirements are and continue to be met, the law should also place an explicit duty on the Government to uphold and protect the freedom of the press.”

At first glance, that’s all very lovely. But it is meaningless at best, dangerous at worst, and certainly not a First Amendment style law.

Meaningless because all sorts of countries have constitutional guarantees of a free press. China, for example, states in article 35 of its constitution that “Citizens of the People’s Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration.” Fine words.

Dangerous as it could imply that the government of the day ultimately holds press freedom in its hands. This, it may be argued, is the case anyway, but to explicitly say it is not ideal. As noted in a recent Huffington Post article by Hacked Off’s Brian Cathcart, the British government has made many attempts in the past to stifle press freedom. I don’t really see why we should explicitly say the concept belongs to them.

The first amendment states simply:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

To claim that Leveson’s proposal, specifically to create a law about freedom of the press, is the same thing, is odd. When coupled with the proposal of punitive measures for those publishers who do not wish to play the government’s game, the claim is absurd.

This article was originally posted on 26 Nov 2013 at indexoncensorhip.org

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About Padraig Reidy

Padraig Reidy Padraig Reidy is a columnist for Index on Censorship. He has also written for the Observer, the Guardian, and the Irish Times.

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3 Responses to On Leveson, language and topsy-turviness

  1. Mike Harris Reply

    28 November at 16:25

    As Hugh knows, unless he is confused, exemplary damages are just that: exemplary. There has not been a recent libel case where exemplary damages have been awarded. These changes will alter that balance with a direct impact on Article 10 rights as suggested by a number of organisations.

    Mike Harris, Index on Censorship

  2. Padraig Reidy

    Padraig Reidy Reply

    28 November at 16:03

    Hi Hugh,
    No, the word comrade is not supposed to be meant in a perjorative fashion. It’s a word I use all the time in a comradely manner.

    As to your points, I disagree I’m afraid. While exemplary damages are always technically possible, the legislation and the royal charter makes them much more likely to be raised in proceedings.

    As to “the purpose of the amendment is to require the Government to protect press freedom”, we know that all sorts of caveats can be placed on that freedom by the very government who would be entrusted with it.

  3. Hugh Tomlinson Reply

    28 November at 12:24

    As one of Martin Moore’s “comrades” (a word which I am sure is not intended to have a pejorative charge) can I deal with two points arising out of this post.

    First, Padraig is confused about exemplary damages. The press have been liable to pay exemplary damages for over 200 years (as, indeed, they are in the United States). What is proposed is that members of the self-regulatory body will be immune from exemplary damages awards in most cases. At the same time, the circumstances in which exemplary damages can be awarded have been redefined (in accordance with a long standing Law Commission recommendation). They may be awarded in cases of outrageous disregard of the rights of others. This is not a punishment it is a potential immunity for those who submit to effective self-regulation.

    Second, there is the Leveson proposal about placing a duty on the Government to uphold and protect freedom of the press. Padraig suggests two objections. The first is that in countries which lack an independent judiciary, legal guarantees of press freedom are not upheld. True but irrelevant to the position in the UK where we do have an independent judiciary. The second is that such an amendment “could imply” that the Government holds press freedom in its hands. This makes no sense – the purpose of the amendment is to require the Government to protect press freedom. It puts an additional, pro-press, obligation on the Government. It adds to the rights of the press rather than taking rights away.

    Hugh Tomlinson
    Chair, Hacked Off

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