Index on Censorship – Leveson Report Policy Note – December 2012

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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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In a matter of weeks Lord Justice Leveson will issue recommendations for a new system of press regulation. It’s an important moment for the British media: his Inquiry has exposed reprehensible press tactics and attacks on privacy in its extensive scrutiny of Fleet Street. Mistrust in the press is high, and claims that self-regulation has failed have come thick and fast.

But there is also the risk that the recommendations in Leveson’s report might endanger Britain’s centuries-old press freedom. This week, MP John Whittingdale, Chairman of the Culture, Media and Sport Select Committee, said the Inquiry had been used as a platform to kick the press, and that Leveson had “almost encouraged anyone who has a grudge against the press over many years to come and sort of unburden themselves in front of him”. As a result, the issues addressed in the hearings went outside Leveson’s original remit. Indeed, as Whittingdale said during Radio 4’s The Media Show, the Inquiry was hindered by its inability to look into the events at the News of the World that triggered the Inquiry “until after the criminal prosecutions had been finished”.

Exclusive extracts from our magazine:

The Lawyer | Mark Lewis | Do we need a free press?
The Blogger | Guido Fawkes | Where will this all end?
The Journalist | Trevor Kavanagh | The Leveson effect
The Editor | Alan Rusbridger | Striking a balance
Hacked Off | Martin Moore | The danger of power

At the end of August Leveson, following procedure, issued Rule 13 notices to editors warning them of his forthcoming criticisms and giving them an opportunity to respond. Some were concerned: Independent editor Chris Blackhurst said the document was a “point-by-point demolition of the industry.”

Given the seriousness of the Inquiry’s trigger — mass criminality (the latest figure of possible victims is now over 4,700), the failure of our police to properly investigate the events and the unnaturally cosy relationship between editors, the political elite and the Metropolitan police — Leveson is keen to recommend something that will command public respect. Over the eight months of hearings various regulatory suggestions have been put to Leveson: a press-card model, a contractual system, a body able to fine errant newspapers up to £1m and a system backed by legislation to resolve privacy cases.

As for statutory regulation, Leveson is well aware of the dangers of getting the state involved in regulating a medium that is supposed to regulate the state itself, although he has not ruled out some form of statutory underpinning of a beefed-up Press Complaints Commission. During his day at the Inquiry, David Cameron called statutory regulation a “last resort”, with one report (£) suggesting the prime minister is preparing to reject statutory intervention even if Leveson recommends it.

Tougher regulation and the facility to provide redress and protection for the individual cannot be achieved at the price press freedom. Without this crucial element of our democracy and history, we lose the ability to hold power to account and investigate wrongdoing. Public discourse would be seriously undermined.

Self-regulation can be improved through more accountable newsroom management. Much of what triggered the Inquiry was a matter of culture: unethical newsroom practices flourished because they could; only stronger editorial governance and newsroom management can deal with them. The new regulator also needs to be effective in monitoring and setting standards and could provide effective, fair and rapid complaint resolution, as Index and English PEN argued in the joint Alternative Libel Project.

It is also essential Leveson pushes for a stronger public interest defence, a concept at the heart of investigative journalism, in the range of criminal offences that apply to the press. The ability to uncover serious wrongdoing and expose the truth is at the heart of a free press in a democratic society. Yet only a number of laws that editors may allow a journalist to breach in order to expose wrongdoing or impropriety carry a public interest defence, namely Section 55 of the Data Protection Act. It was under this section of the DPA that the Crown Prosecution Service found that any alleged misconduct on the part of reporter Amelia Hill in her coverage of the phone hacking scandal for the Guardian (using information from confidential sources) was in the public interest. It is worth remembering that phone hacking was exposed by the of one newspaper alone  — the Guardian — after the police failed to properly investigate in 2006 and 2009.

Other legislation investigative journalists find a legal barrier, such as the Computer Misuse Act, Official Secrets Act and Regulation of Investigatory Powers Act (RIPA), do not carry such a defence.

Imagine a journalist hacked into a minister’s email to expose corruption. No matter how small the intrusion, there would be no public interest defence in the Computer Misuse Act for that reporter if he or she were to be prosecuted. Greater consistency across various laws is needed to reassure reporters that, in cases where they do transgress the law, they would have the option of a defence available (£) and not feel deterred from doing good journalism.

Ensuring high standards of professionalism, including high ethical standards, while protecting the freedom of the press is Leveson’s challenge. Before the year is over we will see how the scales will tip.

Marta Cooper is an editorial researcher at Index. She tweets at @martaruco

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To improve the culture, practice and ethics of the press, we must protect and promote the best of journalism. Alan Rusbridger makes the case for a new settlement

I have always believed that the most interesting period in the phone hacking story was the 18-month period following the Guardian ’s original revelation of the Gordon Taylor settlement — which blew apart News International’s “one rotten apple”  defence in July 2009. It was interesting precisely because almost nothing happened. All the dogs one would expect to bark in such a situation stayed silent. From the politicians, to the police, to the regulator, to the press themselves.

The Leveson Inquiry has finally given us some insight into what was happening in this period. The inquiry has had criticism — some merited, some not. But no one can doubt that Leveson has uncovered uncomfortable truths about the way a number of journalists — as well as politicians and police — have worked in the past. In what other sphere of public life do we think that transparency of this kind is an undesirable thing? I am confident that good things can flow from holding the press up to scrutiny, however difficult it may have been at times.

The press in this country has been under-regulated but over-legislated. There is a risk that by addressing only one side of this equation — by only strengthening regulation — the inquiry will undermine the strength of our press to do the work we all deem so vital. We therefore argued the inquiry should redress the balance between regulation and legislation and make recommendations that meet the twin objectives of protecting the public and protecting press freedom. It is not possible to improve the culture, practice and ethics of the press without protecting and promoting the best of journalism in the public interest.

We believe therefore in a new settlement which will address four deficiencies.

Defamation

The 2011 Global Press Freedom Rankings placed the UK in joint 26th place. Libel law has been cited by many investigative journalists as the main constraint on their work. The current defamation bill makes some improvements but says little, for example, on early dispute resolution. Libel is an essential piece of this jigsaw, especially through an alternative dispute resolution system which we hope Lord Justice Leveson will propose.

Plurality

Another measure of freedom is whether reporters are genuinely free to follow any story they wish — or to what extent proprietorial, editorial or commercial pressures circumscribe, or otherwise influence, the freedom to report on matters of genuine public interest. Without the sort of plurality that enables the Guardian to exist as well as other, much bigger and wealthier titles, it’s doubtful we would have learned about phone hacking. It is understandable that Leveson does not feel able to do a full review of plurality jurisprudence. But anything which concentrates power in the hands of fewer and fewer multi-billionaire proprietors will impoverish our society. The current plurality framework — which apparently granted no one the power to intervene over the BSkyB deal — is plainly insufficient to ensure the kind of plurality that is necessary for a healthy democracy. And this is about more than News Corporation, as anyone following developments in Australian media ownership will testify.

Public interest journalism under threat

While the digital transition brings many benefits — above all, an explosion in free expression that enriches democratic discourse — we must tackle one of its less desirable consequences: a diminution in public interest journalism. Investigative journalism — costly, unpredictable and with no direct revenues attached — is often among the first savings to be made. Other forms of reporting — foreign correspondents, court reporters, specialists — are next. So editors and reporters simply don’t have the freedom to do the reporting that society may want or need. Regulation should therefore enhance the climate for this work, not diminish it. This will include protections for public interest journalism in regulation as well as through consistent application of public interest defences in laws affecting the media.

Regulation

The press must accept that the breach of trust engendered by a series of Editors’ Code breaches and a discredited PCC needs tackling immediately and resolutely. That’s why we have argued for an ambitious system of regulation that includes the use of an alternative dispute resolution system that benefits both complainants and publishers by delivering meaningful redress for breaches of the Editors’ Code, quickly and cheaply. A measure of this strength is essential to prevent the introduction of compulsory or statutory mechanisms to deliver full participation that may undermine press freedom. But it also demonstrates that the press is determined to improve its standards and practices without recourse to judges. So let’s hope that Leveson proposes a balanced package of proposals, in effect a new settlement that both restores trust in journalism and strengthens our role in serving the public interest.

Alan Rusbridger is editor-in chief, Guardian News & Media

Exclusive extracts from our magazine:

The Lawyer | Mark Lewis | Do we need a free press?
The Blogger | Guido Fawkes | Where will this all end?
The Journalist | Trevor Kavanagh | The Leveson effect
Hacked Off | Martin Moore | The danger of power

The post The Leveson Inquiry: striking a balance to protect public interest appeared first on Index on Censorship.

The Leveson Inquiry should not forget the need to protect British journalism, says Marta Cooper

In some of the clearest hints on his likely recommendations on changes to press regulation — due this autumn — Leveson told Monday’s witness, former prime minister Tony Blair, that any successor to the Press Complaints Commission (PCC) would need to be independent of the government and the industry.

He added that there was a need to “have a mechanism that means that sanctions work”.

The judge said any system must employ experts, and command both press and public respect, as well as provide redress to those who cannot afford the luxury of litigation. On the issue of notifying subjects before a potentially damaging story about them is printed — a cause championed by ex-Formula 1 boss Max Mosley — Leveson chose his words carefully, suggesting there had to be “some way of drawing a line”.

This is not the first time he has floated such ideas. The judge has repeatedly reminded watchers that he is merely thinking aloud, stressing he has no desire to imperil free speech, as he told education secretary Michael Gove during their duel in court 73 on Tuesday.

Yet what gets lost in this Inquiry, which seems continually to unearth new conundrums outside of its remit, is the need to protect the press that Leveson has been enlisted to sort out.

There is a need for a clearer legal definition of public interest, as demonstrated by this week’s decision by the Crown Prosecution Service to take no action against Guardian reporter Amelia Hill, who was investigated over leaks from the Metropolitan police’s phone-hacking investigation.

While the CPS found there was a realistic prospect of section 55 of the Data Protection Act having been breached, it said the public interest “outweighed the overall criminality alleged” involved in publishing the information received from a police officer. There was also no evidence the police officer was paid any money for the information.

This measured decision was the responsible and the right one: it protects investigative reporting and the freedom of the fourth estate to do its job.

But unlike section 55 of the DPA, other criminal offences that that this country’s media may fall foul of — such as the Official Secrets Act, Regulation of Investigatory Powers Act 2000 and Computer Misuse Act — do not offer the protection of a public interest defence.

Imagine a journalist hacked into a minister’s email in order to expose corruption. Regardless of what was exposed, or how small the intrusion, there would be no public interest defence in the Computer Misuse Act for that reporter if he or she were to be prosecuted.

We need journalists to expose the truth, and in pursuit of this there may be occasions where reporters break the law. The Daily Telegraph’s expose of MPs’ expenses, using information that was paid for, is a clear example of the ends justifying the means. A stronger public interest defence would mean journalists could be reassured that in such cases they would have a strong defence, and not feel deterred from doing good journalism.

None of this is to suggest the press is above the law. On the contrary: if journalists were protected by such a defence — one that could be weighed up by the courts — the line between responsible, investigative journalism and acts of egregious wrongdoing would be clearer.

Rather than resorting to statute to solve what has already gone wrong, a public interest test could also improve our current system of self-regulation, as City University’s George Brock has argued here (£). By showing they deserved the protection of a public interest defence in their actions, newsrooms would be able to be more transparent about the editorial standards employed. “Trivial, sloppy or bad journalism which can’t claim a public interest justification gets no protection; better journalism at least has that line of defence available,” says Brock. This seems like a fair deal and a way to create an incentive for journalists to rely less on the so-called dark arts for their stories.

Despite the relentless criticism piled on the Press Complaints Commission over the course of the Inquiry, its definition of public interest is comprehensive. It includes but is not confined to detecting or exposing crime or serious impropriety; protecting public health and safety; and preventing the public from being misled by an action or statement of an individual or organisation. It states that there is a public interest in freedom of expression itself, and also protects the paramount interest of a child in cases involving children under 16. It provides a useful starting block from which to develop a fuller public interest test.

The British press is already hemmed in by the existing law of the land, as Inquiry witnesses Private Eye editor Ian Hislop and former Times journalist Gove pointed out. The question is how to better enforce it and in so doing improve editorial governance, encourage transparency and protect reporters, the vast majority of whom were appalled by the wrongdoing at the News of the World that triggered the Inquiry in the first place.

This country is home to some brilliant papers, vibrant and loud voices who are unafraid of getting their hands dirty by investigating corruption, scandal and wrongdoing. It might be tempting to look at the Inquiry as a chance to rein in the feral beasts, but let’s not forget that it was an act of brave and relentless journalism that exposed an act of putrid journalism. The illegality exposed is being dealt with, and rightly so.

Lord Justice Leveson has said he does not want to risk his Inquiry ending up as a footnote in history, and a bargain must certainly be struck between balancing our free press and a regulator with teeth. But a bigger risk is missing this chance to protect the journalism — rough and ready, noisy, tireless — that makes our press freedom worth fighting for.

Marta Cooper is an editorial researcher at Index, where she leads coverage of the Leveson Inquiry. She tweets at @martaruco

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