Kirsty Hughes outlines Index’s issues with the press inquiry’s recommendations

Lord Justice Leveson’s report could determine the path of the press in Britain for years to come.

There will be many more days of picking over the minutiae of the 2,000 page report, but some key elements are clear — and have already split the coalition and the House of Commons.

Statutory regulation threatens press freedom

Statutory regulation, or underpinning in the jargon, of an “independent” press regulator is Leveson’s core recommendation. If it happened, this would mean a specific law would set out aspects of control of the press for the first time in over 300 years. Index is strongly opposed to any such statutory involvement in press regulation.

In his brief remarks presenting the report today, Leveson attempted to pre-empt such criticism asserting: “This is not, and cannot be characterised as, statutory regulation of the press.” But the Prime Minister David Cameron disagreed in his statement to the House of Commons saying he had “serious concerns and misgivings” and that statutory underpinning of an “independent” regulator would be an “enormous” step.

Leveson’s report sets out in great detail the characteristics and criteria that the new regulator should meet. It also suggests that a “recognition body” would assess and “certify” that the regulator met these criteria — with Ofcom suggested as the best organisation to be this recognition body. MPs would vote into law these criteria, and would vote into law the process by which an “independent” appointments panel would select the chair and board of the regulator (which would exclude any current editor).

Politicians must not control the press

This politicisation of press control would be a major breach of the principles of freedom of expression and a free press. There are fundamental reasons why politicians and media should be distinct from and independent of each other. The cronyism between media, police and politicians, exposed in part in the Leveson Inquiry, is not a reason to establish a sort of “reverse cronyism” whereby media would risk being pressurised by government and other politicians.

The media has a vital role to play — as Leveson himself indicated — in monitoring and reporting the political scene, challenging and criticising and holding to account those in power; if journalists cannot do this robustly and without fear of interference or other political consequences, press freedom is constrained. Beyond this, even “light” statutory regulation could easily be revisited, toughened and potentially abused once the principle of no government control of the press is breached.

The fact that, in Leveson’s recommendations, it is left as “voluntary” for news publishers to decide to join, does not mitigate the fact that all those who do join are part of a statutorily-established process. And there is also a Catch-22 here since the Report states that the press regulator should only be recognised as effective if “all significant news publishers” join. So if one major news outfit doesn’t join, the regulator is deemed unacceptable. In that case, all “significant” news publishers would be part of the statutorily-established system.

The system Leveson proposes is very similar to that operating in Ireland since 2009. The Irish system does not however demand that all significant news outfits join. And, on the other hand, the Irish model is somewhat more intrusive in that the Justice Minister there essentially plays the role that Leveson suggests Ofcom would play in the UK system. While Ofcom is somewhat more arms-length than a UK minister acting as the “recognition body”, this does not solve the central problem of statute, which must be created by politicians.

Leveson goes to some lengths to set out criteria for an independent appointments panel to appoint the independent chair and board of the “independent” regulator. But if MPs first vote on the detailed statute that sets up the panel and the criteria for the regulator, then this proposal threatens press freedom in the UK and Cameron must remain resolute in his opposition to this.

Other key proposals

Leveson’s proposal for a cheap, effective arbitration service is one that Index welcomes — this can benefit both complainants and publishers in ensuring complaints can be dealt with swiftly, fairly, and without great costs. Swift, fair arbitration in this way can deal with those cases where the media is, or is felt to be, impervious to complaints. A much stronger standards arm, fines, and more independent figures on the regulator’s board can all act — as Leveson and the party leaders agree — to transform the behaviour of those parts of the press whose behaviour Leveson castigates in his report.

Leveson calls for much greater transparency in media relations with politicians and the police especially at senior level. Ending cronyism and inappropriate relationships between some journalists, some politicians and some police is important. But insisting all contact between senior police officers and journalists must be transparent risks throwing the baby out with the bathwater — deterring whistle-blowers and inhibiting legitimate journalism.

Leveson insisted today that it was wrong to say that the phone-hacking scandal and other examples of damaging and inappropriate press behaviour and intrusion into individuals’ privacy were due to failure to apply the law. But the criminal law does apply to the media, as to other organisations and individuals. And a combination of effective application of existing laws with a stronger independent regulator – set up without any statute or parliamentary vote — can provide the framework for genuine press freedom to be upheld in the UK and to ensure there are higher media standards, better governance, and greater protection for individuals’ from criminal, in appropriate and unjustified media behaviour. A statutory route will undermine the free press that Leveson — and Clegg and Miliband — claim they want to keep.

Kirsty Hughes is Chief Executive of Index on Censorship. She tweets at @Kirsty_Index

Background

Press Release: Index on Censorship’s response to the Leveson report

Index Policy Note: Freedom of the Press, Governance and Press Standards: Key Challenges for the Leveson Inquiry

 

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As over 50 international human rights NGOs have pointed out in a letter to Prime Minister David Cameron today, a damning report by the UN Human Rights Committee on English libel law spurred the calls for action to change the law. But with the government’s defamation bill merely codifying important sections of the law in statute, it remains to be seen whether they will deliver on the commitments made by the coalition parties at the last general election. The Libel Reform Campaign is calling for the House of Lords to make substantive amendments to the bill, in particular a new public interest defence and amendments to the “responsible journalism” defence; a new clause to strike out actions by corporations, an amendment forcing early strike out of trivial cases and improvements on regulations covering the internet. It’s time to get this right.

We need a public interest defence – now
Without a public interest defence in the Bill, this legislation will fall far short of initial expectations. Previous libel defendants Simon Singh and Dr Peter Wilmshurst have told the campaign that the provisions in this Bill would have done nothing to protect them in their cases. Clause 4 of the bill as it stands is merely the codification of a version of the existing Reynolds “responsible journalism” defence — it is not a public interest defence. In the Reynolds judgement (the 1999 House of Lords judgment in Reynolds vs Times Newspapers Ltd), Lord Nicholls suggested 10 criteria that could be used to measure whether a publication had been responsible. Although these criteria were meant to be illustrative they have come to be seen as a list of requirements to be satisfied. While a large newspaper group may be able to satisfy these criteria (albeit at huge expense), for bloggers, scientists or NGOs this is simply not practical. A better defence for large media organisations can be created by updating the bill to reflect the latest case law, in particular the summary by Lord Justice Brown in Flood vs Times. This should be included in the Bill either by deleting the entirety of the existing Clause 4 to keep the existing common law position which is stronger than the position in the Bill; or, more suitably (to create legal certainty) by amending the existing Clause 4. This amendment would at least give large media groups a reliable “responsible journalism” defence.

Last chance to demand Libel Reform. England’s libel laws are unjust, against the public interest and internationally criticised. Join 60,000 others calling for change. Sign here.

However, a “responsible journalism” defence will not protect the bloggers, scientists and NGOs who have driven the Libel Reform Campaign. Some MPs have responded to calls for a public interest defence, rather than just a responsible journalism defence. In the bill Committee, Rob Flello MP (the Labour party’s lead on this issue) proposed a strong public interest defence based around proposals from the Libel Reform Campaign for the government to use. A variant of this defence was adopted by Liberal Demoract Simon Hughes MP at report stage before the Bill went to the Lords. Such a public interest defence has found defenders inside the Conservative party including Rt Hon David Davis MP and Sir Peter Bottomley MP.

This public interest defence, to be inserted in the Bill as a new clause, would protect genuine public interest statements made in good faith. The clause would require that statements that meet a public interest threshold, which cannot be shown to be substantially true (such as claims around scientific research), are promptly clarified or corrected with adequate prominence. Those publications that do not drag their heels in publishing a prominent correction or clarification would be protected from having to defend a libel action. This gives bloggers, NGOs and scientists latitude to publish in a responsible manner on matters of a public interest.

The Libel Reform Campaign is looking to the second reading in the House of Lords for the government to adopt such a public interest defence.

Action on corporations
As pointed out by Index on Censorship, if defamation is about protecting the psychological integrity of individuals, why should corporations be able to sue?

The Libel Reform Campaign is lobbying parliamentarians to adopt a new clause on corporations, preventing them from using the law of defamation to sue individuals and requiring them instead use alternative laws such as malicious falsehood (which has a higher threshold of harm), the Business Protection from Misleading Marketing Regulations 2008 (BPRs), or a freestanding remedy of obtaining a declaration of falsity. The Labour party pursued this point during the Bill Committee, the Liberal Democrats made a manifesto commitment to do this at the last election, and many Conservative parliamentarians have called publicly for a bar on corporations suing individuals (or a higher threshold to initiate such an action). We expect the House of Lords to consider this during the second reading.

Striking out trivial cases
In recent years, the courts have allowed trivial or vexatious cases to proceed at huge expense to both the claimant the defendant, even where there has been little chance of the claimant winning their case. The Ministry of Justice believes that “existing procedures will suffice” under rule 3.4 of the civil procedure rules to strike out such cases at an early stage. But this has clearly not been borne out in legal practice. If the government’s intention is to allow for early strike out, then there must be an amendment telling judges to strike out claims that fail to surmount the “serious” (harm and extent of publication) hurdle.

President Barack Obama signs the SPEECH Act, which protects US citiizens from English libel law

Strengthening protections against “libel tourism”
In 2010, President Obama signed into law the US SPEECH Act protecting Americans from libel judgements made in the high court here. John Whittingdale MP, the chair of the Culture, Media and Sport Select Committee described this as a “national humiliation”. The current Bill does help prevent “libel tourism”, the phenomenon where international parties sue in the High Court in London rather than in a more appropriate domestic court.

But while the government’s Clause 9 is an improvement on the current position in law, we believe Subsection 13 (2) of Lord Lester’s Private Members’ Bill would be better, and should be added as an amendment to Clause 9 as it is clearer than the current “libel tourism” clause.

Lord Lester’s clause states:

No harmful event is to be regarded as having occurred in relation to the claimant unless the publication in the jurisdiction can reasonably be regarded as having caused substantial harm to the claimant’s reputation having regard to the extent of publication elsewhere

Internet regulations
This is a weak point of the bill. In recent years, internet intermediaries have received some protection from e-commerce regulations. Under these regulations, hosts do not have to remove material unless they are informed that it is “unlawful”. However, English law has not kept pace with these regulations. Section 1 of the 1996 Defamation Act (written in the internet’s infancy) involves a lower threshold for liability of intermediaries merely when a statement is “defamatory”. Unfortunately, Clause 5 of the current bill uses this out-dated threshold. The Libel Reform Campaign is also urging the government to publish the wider regulations on internet liability immediately. The government is currently intending to amend into the bill through a statutory instrument, giving Parliament a far more limited role in scrutinising these important regulations.

When the Bill is debated in the House of Lords, the Libel Reform Campaign hopes the government will signal its intention to bring forward amendments to the bill in light of the comments and tabled amendments from parliamentarians from all the main political parties. All three parties promised reform. Now is the time to deliver.

Mike Harris is Head of Advocacy at Index on Censorship

Last chance to demand Libel Reform. England’s libel laws are unjust, against the public interest and internationally criticised. Join 60,000 others calling for change. Sign here.

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