Index, for our part, welcomed the rejection of the government’s royal charter, while still being opposed to the papers’ royal charter.

Why? Well, there’s the issue that Index doesn’t really want there to be any royal charter, at all, no matter who’s dreamt it up. It still creates the prospect of external political approval of press regulation.

There’s also a problem that the papers’ version of the charter gives them a veto over appointments to the regulatory board, which risks the regulator being seen as a tool of the industry, just as the PCC was perceived to be.

Then there’s the issue that it doesn’t really address the problem of the threat of exemplary damages for those outside the regulator, one of Index’s key concerns.

And it leaves us none the wiser as to the whole “What’s a newspaper/journalist/website/blog?” question, which has been the cause of some confusion (as illustrated by Martin Belam‘s satirical take on the government’s explanatory flowchart below).

Still, the rejection is the interesting part. And the furore over the rejection has somewhat undermined the claims made by government and campaigners that they believed in a wholly voluntary system.

What happens next? By Leveson’s own admission, if a substantial part of the industry refuses to sign up, then the regulator has failed before it has even begun. That is where we seem to be now.

It was interesting to note that in his interview on BBC radio’s World At One yesterday, Peter Wright, who has been leading the discussion for Associated, Telegraph and News International publications, said that the other papers who are not part of that group saw the alternative royal charter proposal as a way to “get the ball rolling again” on negotiations over reform. That would suggest that even Wright sees this merely as the opening gambit in fresh negotiations.

So perhaps now we can start discussing the terms of a new, genuinely independent and voluntary regulator, without the mad rush that led to the government’s ultimately botched effort.

The post The newspapers’ royal regulation gambit appeared first on Index on Censorship.

John Buckman, chair of the San Francisco-based Electronic Frontier Foundation (EFF), delivered the keynote speech: “Britain, under the thumb of…”

He filled in the blank with references to the copyright industry, the new Royal Charter on press regulation, overreaching child protection restrictions, the EU, the US, and private web companies, all of which pose significant challenges to digital freedom of expression in the UK.

The rest of the day was split between four panel sessions and eight impromptu “unconference” sessions for which participants pitched ideas and convened small groups to discuss them.

I spoke on a panel about the right to offend, alongside ORG’s Peter Bradwell and The Next Web’s Martin Bryant. Overly broad and outdated legislation, most notably Section 5 of the 1986 Public Order Act and Section 127 of the 2003 Communications Act, are regularly used to criminalise freedom of expression both online and offline in the UK. Despite a successful campaign to drop “insulting” words from the grounds on which someone can be prosecuted for offence under Section 5, the fact that neither of these provisions address the speaker’s (or tweeter’s) intentions continues to chill freedom of expression in the UK.

Also troubling is the fact that other states, India and the UAE for example, point to these and other British laws as justification to prosecute offensive expression in their own jurisdictions. I argued that protecting everyone’s fundamental right to freedom of expression is more important than protecting the feelings of a few people who might take offense to satirical, blasphemous or otherwise unsavoury views. For freedom of expression to be preserved in society, potentially offensive expression requires the utmost protection.

Another panel addressed the proposed EU General Data Protection Regulation, which intends to strengthen existing privacy principles set out in 1995 and harmonise individual member states’ laws on data protection. Provisions in the proposal around consent, data portability and the “right to be forgotten” aim to give users greater control of their personal data and hold companies more accountable for their use of it. Many companies that rely on user data oppose the regulation and have been lobbying hard against it with the UK government on their side whereas some privacy advocates argue it does not go far enough.

There were also discussions on the open rights implications of copyright legislation and the UK’s Draft Communications Data bill (AKA Snooper’s Charter), which looks set to make a comeback in the Queen’s speech on May 8.

The “unconference” sessions addressed specific causes for concern around digital rights in the UK and abroad. I participated in a session on strategies for obtaining government data in the UK and another on the US Foreign Intelligence Surveillance Act of 1978 (FISA) Amendments Act of 2008. This Act, along with the Protect America Act of 2007 legalised warrantless wiretapping of foreign intelligence targets. Digital rights activists took notice of the laws because the rise of cloud computing means even internal UK and EU data is potentially susceptible to US surveillance mechanisms.

Other “unconference” sessions focused on anonymity, password security, companies’ terms of service, activism and medical confidentiality.

The full OrgCon North agenda is available here. ORG’s national conference will take place on 8 June and will feature EFF co-founder John Perry Barlow who wrote the much circulated and cited “Declaration of the Independence of Cyberspace” in 1996.

Brian Pellot is Digital Policy Adviser for Index on Censorship. Follow him @brianpellot

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‘The Prime Minister is right not to have made a shoddy compromise with Nick Clegg and Ed Miliband, which would have meant statutory underpinning of press regulation. Politicians should not pass laws that specifically control the press if those politicians are to be held to account by a free press.

“The Royal Charter is itself a compromise as it does mean some political involvement – which Index opposes. It is also quite wrong to say – as supporters of the statutory route have –  that David Cameron is doing what the press barons want. A tough new independent regulator whether set up by Royal Charter, or preferably by a route with no political involvement at all,  is a big step forward compared to the previous system of self-regulation, which doubtless many of the press barons would still prefer.

“Cameron’s decision to put the Royal Charter approach to a vote is a risky one – and Index is concerned to see MPs voting in even this form on press regulation. But Cameron’s decision to go to a vote has clearly been forced by the threat of wrecking amendments being added into several bills, including one that is already threatening the passage of the Defamation Bill, which Leveson himself said should be kept separate from his work.”

The post Index responds to collapse of Leveson press reform talks appeared first on Index on Censorship.

This letter appeared in the Financial Times on 14 March 

Sir,

It is a sad day when the Financial Times changes its principled and welcome defence of press freedom in the UK to one of pragmatic compromise  (“Time for Sensible Press Compromise” 11/3/13). Your own prior editorials on this issue tell us clearly why this shift from principle to pragmatism is wrong.

Print media are not and should not be above the law. But nor should politicians make laws — or define regulators — that are specifically for the press. The principles are clear. Politicians are in a position of power while newspapers like the FT both hold politicians to account for their exercise of that power through independent, high quality journalism, and they endorse or oppose particular policies, government strategies and advise readers on who they would vote for when elections come round. For all these reasons and more, politicians have every motive to want to influence and control the press (more so than broadcasters who have to remain impartial and balanced).

Statutory underpinning of the detailed characteristics a supposedly “independent” regulator must meet breaches this clear principle of keeping the print media free from political interference. The FT has been a welcome and staunch defender of this principle first when Leveson came out, insisting on the avoidance of a “press law by the back door” (29/11/12), and secondly, when the royal charter was first mooted by David Cameron “well-meaning reform must not unwittingly open the door to state interference in the press” (12/2/13), going on to say that the royal charter would not “banish the shadow of state interference.”

The FT has now moved to the fudge that it rejected a month ago, a fudge Index on Censorship still rejects for reasons we cannot put any  better than you did then: “While some may see such a fudge as a better expedient than statutory control, this newspaper [delete newspaper, replace with Index] continues to favour credible independent regulation at arm’s length from the state.”

Kirsty Hughes

Chief Executive

Index on Censorship

London EC1

The post Financial Times betrays central principle in stance on media freedom appeared first on Index on Censorship.

This post originally appeared on the Independent Blogs

As the often theatrical spectacle of the Leveson hearings — with its mix of posturing, jousting, inquisition and exposé — draws to a close, the big question is what Leveson will recommend this autumn. Will we see proposals that defend press freedom and promote high professional standards, or do we risk facing proposals that limit press freedom and serious investigative journalism?

Given the range of unethical and illegal behaviour exposed in the phone-hacking scandal, and the tawdry tales of political-media cronyism under the spotlight at the Inquiry, there may be a risk that Lord Justice Leveson will prioritise standards and regulation over our sometimes riotous press freedom.

Calling for independent, self-regulation in the face of the excesses of some in News International and elsewhere cuts little ice with many. But it is worth recalling the most basic elements of our democracy that underpin the need to keep the state well out of our press. Our universal and fundamental right to free speech, to hold opinions, share information (across borders and different types of media), and express views is enshrined in international charters and laws for good reason, not least given governments’ proclivity to interfere in that right.

The governments that most go in for controlling the press, bugging their own citizens, snooping on the net, or criminalising speech tend to be the authoritarian or totalitarian ones, whether we are thinking China, Azerbaijan, Iran or North Korea. But intrusions into press freedom in Italy and Hungary show the problem is closer to home and within democracies too. Without a free press — both online and off — we would lose a big element of our free speech, our ability to hold government and other power-holders (including big business) to account, to investigate wrongdoing, lies, and other cock-ups and conspiracies.

So higher press standards cannot come from statutory government control or regulation. But if the excesses of phone-hacking, and over-close cronyism between some in the media, police and politics, are to be tackled, then we need a new deal. That must include a new self-regulatory body with greater teeth to tackle unwarranted invasions of privacy, false allegations and unethical behaviour. It must be a body that can set and monitor standards. And one that can offer rapid, effective and fair resolution of complaints — including a quick, fair voluntary mediation service as an alternative to lengthy, expensive court cases.

One solution propounded by some given the inadequacies of our current set-up is that press outsiders and retired editors should run the new body. But a press regulator that does not include current senior representatives of the press — not least at a time of rapid change in the technology and business model — will not get buy-in.  Nor do we need to reinvent the wheel. Where appropriate laws exist we don’t need to give those powers to a statutory regulator: current laws can tackle most unwarranted invasions of privacy and can deal with bribery of public officials.

One big challenge for a new self-regulating body — and for Leveson in his report — will be how to balance the right to privacy with the need for serious journalism in the public interest. Journalists need to know that if they are digging deep into questions of misleading or false statements by politicians, or investigating public health or security risks, or tracking potentially criminal behaviour, that they have a public interest defence. At the moment, some UK laws allow such a defence, others don’t. Journalists are operating in an ad hoc and unclear legal framework that can lead them to draw their horns in and shift towards self-censorship.

And last but not least, while the tales of texts, lunches and cosy chats between some leading media figures, politicians and police may encourage an ever downward trend in trust for these groups, regulating such contacts, beyond existing law, is not the way to go either. Whether it’s the whistle-blower, or just a good source in a government department tipping a journalist off in the right direction, serious probing journalism depends on informal interaction with politicians and officials.

Some of our senior figures have shown they have little idea of where to draw the line in such relationships, so clear professional standards need setting out.  But the state will over-regulate given a chance. Voluntary and professional standards combined with good corporate governance remain the only route to go if we still credit press freedom and democracy as inextricable. That is the challenge for Leveson.

Kirsty Hughes is Index on Censorship’s Chief Executive.

Index is co-hosting a panel discussion, What will Lord Justice Leveson conclude about the future of the British press? at the Frontline Club on 19 July. Details and tickets are available here.

The post Leveson, politics and the press appeared first on Index on Censorship.

For some, the Inquiry has presented the British press with an opportunity for a shake-up not dissimilar to that triggered by the Calcutt Report of the early 1990s. Guardian editor Alan Rusbridger praised the Inquiry for triggering a more nuanced look at regulation and statute. Others were less keen: Northern and Shell boss Richard Desmond called it “probably the worst thing that’s ever happened to newspapers in my lifetime”.

Leveson has learned a lot in the past few months. For one, the Inquiry has hammered the last nail into the Press Complaints Commission’s coffin. Harry Potter author JK Rowling called it a “wrist-slapping exercise at best”. In the same week, the  father of missing toddler Madeleine McCann suggested “repeat offenders” of incorrect coverage should lose their privilege of practising journalism. The editor of the Daily Express, Hugh Whittow, went so far as to suggest that one of the reasons for the paper withdrawing from the PCC was because it failed to stop the tabloid publishing defamatory articles about the McCanns.

Criticism also came from the Inquiry team. Counsel Robert Jay QC put it to ex-PCC director Tim Toulmin that the self-regulation body had failed to “test the boundaries of its powers” by choosing not to question former News of the World editor Andy Coulson after he resigned from the tabloid following the 2007 convictions of Clive Goodman and Glenn Mulcaire over phone hacking. Toulmin rejected the suggestion.

But PCC chairs past and present repeated that the body had been criticised for failing to exercise the powers it never had. Former chair Baroness Peta Buscombe argued that the body did not have investigatory powers to summon editors to give evidence under oath. She noted that broadcast regulator Ofcom cannot “deal with crime, nor should it”, and that the rest of the world “would kill” for the British press’s system of self-regulation.

“It is as if you say to the police ‘you are useless because you can’t stop crime’,” her predecessor, Sir Christopher Meyer said. “These are ridiculous arguments.”

The fear of statutory regulation is also alive and well. Times editor James Harding expressed concerns that a “Leveson act” would have a “chilling effect” on press freedom and make reporters submit to political influence. Private Eye editor Ian Hislop perhaps put it best when he said, “if the state regulates the press then the press no longer regulates the state.”

Meanwhile, current PCC chair Lord Hunt warned that “the road to parliamentary hell is paved with good intentions”, adding that there were“very strong views” in parliament that there should be tougher limits on the power of the press. Britain’s “much envied” press freedom, he said, was the country’s “greatest asset”.

It was left to Daily Mail editor Paul Dacre, never one for timidity, to throw the debate wide open with his suggestion of a press card system. He suggested transforming the country’s “haphazard” system into an “essential kitemark for ethical, proper journalism”, with cards denoting “responsible” journalists. How this would translate in the online world of citizen media, however, was a question left unanswered.

Though not directly in Leveson’s remit, libel was one area flagged as in dire need of a revamp. Index CEO John Kampfner and English PEN director Jonathan Heawood flew the flag for the Libel Reform Campaign, arguing that it would be a “tragedy” if the Inquiry’s ongoing work inadvertently delayed the insertion of libel into the Queen’s speech in May. FT editor Lionel Barber also alluded to the “chilling effect” mammoth libel costs have on pursuing a story, while alternative, cheaper means of resolution were proposed by several witnesses.

The Inquiry has also unearthed some misdemeanours. James Harding was recalled to discuss an instance of a reporter at his paper using email hacking to reveal the identity of anonymous police blogger, NightJack, in a 2009 story.  The controversial printing of Kate McCann’s diary without her permission was also referred to more than once. Former News of the World news editor Ian Edmonson was quizzed about extracts of the diary that appeared in the paper in 2008, contradicting claims made by former editor Colin Myler that Edmondson had sought permission to publish from the McCanns’ spokesman, Clarence Mitchell. Asked if he had led editor Myler to believe he had “made it clear” to Mitchell that the paper had the whole diary and planned to publish parts, Edmondson replied: “No.”

Page 3, a mainstay at the Sun since the 1970s, has also proved contentious. Women’s groups said the feature existed “for the sole purpose” of women being sex objects, while Sun editor Dominic Mohan claimed it was an “innocuous British institution” that celebrated natural beauty and represents youth and freshness. He argued that the Sun speaking out against domestic violence in 2003 and raising awareness of cervical cancer screening following the death of reality TV star Jade Goody in 2009 were proof that it was not a sexist tabloid.

The battleground of balancing privacy — “for paedos”, according to Paul McMullan — and public interest is an area we seem less clear on than three months ago. Leveson heard on more than one occasion that there may be a public interest in exposing hypocritical behaviour of celebrities who are “role models”.  Former News of the World chief reporter Neville Thurlbeck defended his splash on David Beckham’s affair with Rebecca Loos, noting that the footballer had cultivated and marketed an image of having a fairytale marriage. Heawood argued that there was a difference between a harmful publication in a newspaper and “real intrusion”, citing JK Rowling’s testimony of a slipping a note into her daughter’s schoolbag as “tresspass”.

The Internet is also an issue keeping Leveson — and newspaper editors — up at night. Mohan called for a level-playing field between print and online, claiming that the combination of an over-regulated press with an unregulated internet was a “very, very worrying thought”. Mirror editor Richard Wallace suggested  ”legitimate” online news providers — whoever these may be — would want to join a new regulatory body because “it gives them a lot of cachet”. Meanwhile, media lawyer and commentator David Allen Green urged the Inquiry not to view bloggers and Twitter users as “rogues”, adding that social media users often act responsibly and regulate themselves by being transparent.

There is much to be done before Leveson makes any recommendations. In his next module he will examine the relationship between the press and police before delving into the mingling between the press and politicians, a union repeatedly lamented during module one.  Leveson has said he does not wish to become a “footnote in some professor of journalism’s analysis of 21st century history”. If the first module — and the Twitter attention — are anything to go by, it is doubtful he will.

Marta Cooper is an editorial researcher at Index on Censorship and leads coverage of the Leveson Inquiry. She tweets at @martaruco

Follow Index on Censorship’s coverage of the Leveson Inquiry on Twitter – @IndexLeveson

The post Leveson Inquiry: The story so far appeared first on Index on Censorship.

Hungary is the only European state whose guide to their media law includes an entire appendix dealing with international criticism.

The country needed a new media law to replace outdated regulations enacted before the fall of the Berlin Wall, and a second series of provisions in 1996. Yet in the interim, whilst politicians debated regulation, Hungary’s journalists did a disservice to their profession, by failing to provide a model for self-regulation. With reform on the agenda, the newly elected Fidesz government stepped in and imposed one of the most draconian media models anywhere in Europe. As the international partnership mission to Hungary (which Index on Censorship is part of) found, the new law is broad, uncertain and inconsistent with basic standards of media freedom.

The Hungarian government is keen to export its model of regulation – as a way of seeing off criticism from bodies including the European Parliament and OSCE. If it is successful, media freedom across Europe will be under threat.

Hungary’s model of “co-regulation” is a peculiarity. The new media law created the National Media and Infocommunications Authority which has statutory powers to fine media organisations up to €727,000, oversees regulation of all media including online news websites, and acts as an extra-judicial investigator, jury and judge on public complaints. It is portrayed as an arm’s length government agency. Yet Annamaria Szalai, the President of the Media Authority is a known Fidesz supporter and all five members of the Media Council were delegated by exclusively by the Fidesz majority in Parliament. Members of the Media Council serve a nine-year term (over 2 parliamentary cycles) so even in the event of a change of government the media authority will still be dominated by Fidesz delegates.

Co-regulation is neither statutory regulation nor self-regulation. Those bound by the Media Authority include the Hungarian Association of Internet Content Providers, all TV stations and major newspapers. All volunteered to enter co-regulation which allows the Media Council to rule on received complaints. Yet, there was little choice. For organisations that remain outside the code, the Media Authority can levy fines of up to €727,000 for breaches of the new national media law. Inside co-regulation, fines cannot be levied, but the grounds for censor journalists are exactly the same as the national media law — and both are broad and uncertain. Hungary has forced the press to internalise a code that is far stricter than in other European countries.

One of the strongest provisions is that media owners should be “fit and proper”. In Hungary under Articles 185 – 189 of the new law, media owners who have previously been the subject of complaints upheld by the Media Council cannot bid for further licenses. Whilst it’s fashionable to suggest such provisions in the UK after phone-hacking, the result in Hungary is chilling. Journalists told our mission that media owners are keen to avoid any possible transgressions of the law and their contracts of employment are being edited to include reference to the new law.

Miklos Haraszti, the Hungarian former OSCE representative on freedom of the media is damning: “It is outsourcing media censorship to the owners.”

Protecting the audience

Article 4 (3) The exercise of the freedom of the press may not constitute or encourage any acts of crime, violate public morals or the moral rights of others – Freedom of the Press

Article 14 (1) The media content provider shall, in the media content published by it and while preparing such media content, respect human dignity – Obligations of the Press

Article 17 (1) The media content may not incite hatred against any nation, community, national, ethnic, linguistic or other minority or majority as well as any church or religious group – Obligations of the Press

At the heart of the new media law is a requirement to protect the audience from insult, threats to public morality, and hatred whether against a minority, or the majority. Its terms are broad and the grounds for investigation by the Media Authority uncertain. As Dr Judit Bayer points out, the law “may restrict any critical statement about any person or organisation”. Even defamation of religions is now an actionable offence.The media code embodies a wide set of protections for the audience. This includes an obligation for broadcasters to warn viewers before the transmission of “any image or sound effects in media services that may hurt a person’s religious, faith-related or other ideological convictions or which are violent or otherwise disturbing” (Article 14 – Requirements regarding the content of media services).

Typically, the most restrictive sections of national media codes (such as the UK’s Ofcom regulations) apply to media that exists in a limited spectrum – such as analogue TV or radio where there are a fixed number of possible stations. Hungary’s code applies to any for-profit media, whether within a limited spectrum, in print, or online.

The mission raised with the Media Council’s President the possible imbalance between the positive obligation Hungary has to protect freedom of expression and the breadth of the grounds for complaint under the media code. Annamaria Szalai was keen to emphasize that ‘not a single forint’ of fines have been levied to date. This is of cold comfort to journalists writing on controversial matters, where a single complaint to the Media Authority could mean the end of their career.

Protection of sources

At the same time, the government’s new media law initiated measures that remove protections for journalistic sources, which the mission found to be incompatible with European law.

Even under Communism, the 1986 Press Act allowed the denial of testimony for journalists. Article 6 (3) — Freedom of the Press — contains a worrying revision to this allowing journalists to be forced to reveal their sources “in order to protect national security and public order or to uncover or prevent criminal acts”. Whilst there is a public interest clause, as the European Court of Human Rights has found in past cases, the protection of journalistic sources is taken very seriously and the “public order” proviso is highly unlikely to pass this threshold.

Tamas Bodoky, the founder of investigative website Atlatszo.hu is currently facing the possibility of 5 years in prison for refusing to reveal the source of a leak to his website. He has been questioned by the police who told him he had to reveal his source. He alleges that his home was entered without a warrant. Bodoky is prepared to take his case to Strasbourg — in the meantime, a hard drive storing the contents of his website has been seized by the police.

Hungary’s new media law allows individuals to take action against journalists and online content for non-criminal offences through co-regulation. With media owners likely to discipline or sack journalists who attract complaints, we can see that co-regulation is likely to deliver the privatisation of state censorship. With partisan reporting on the rise to curry favour with the government — for example, see this TV report on MEP Daniel Cohn-Bendit’s criticisms of the new media law that gratuitously made reference to past allegations —  journalists were keen to emphasize to our mission that the independence of the media is under serious threat.

Hungary has pushed back on press freedom in the face of widespread criticism but little action from European institutions; the real concern is that their model may be exported.

Mike Harris is Head of Advocacy for Index on Censorship

HungaryMission Statement

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