Life After Leveson: The UK media in 2014

The Leveson Report is Published

Britain has always had a complicated relationship with the free press. On the one hand, Milton’s Apologia, Mill’s On Liberty, Orwell’s volleys at censorship and propaganda.

On the other hand, there is a sense that journalists, editors and proprietors are at best incompetent and at worst genuinely venal people whose sole interest is making others miserable.

This ambivalence carries over into the political debate about the media, and the laws and regulations governing the press and broader free speech issues. All British politicians pay lip service to free speech, but the records of successive governments have been far from perfect. For every success, there is a setback.

This paper will provide a brief overview of the state of media freedom in the UK today

Press regulation and the Royal Charter

The Leveson Inquiry into the press reported in November 2012, with numerous recommendations on how press regulation should proceed. After months of negotiation led to deadlock over the issue of a “statutory backstop” to a regulator, in April 2013 the government attempted to resolve the issue, publishing a draft of a “Royal Charter” for the regulation of the press. In spite of the newspapers’ attempt to put forward their own competing royal charter, the Privy Council officially approved the government version in October 2013.

While the government and supporters claim that this is insulated from political interference, requiring consent of all three main parties in both houses (as well as a 2/3 majority) before the charter can be altered, critics say that royal charters, granted by the Privy Council, are essentially still political tools.

But how did we get to this point?

The Leveson Inquiry was called in response to the phone hacking scandal which gripped the country in 2010 and 2011. Journalists and contractors for News of the World, News International’s hugely successful Sunday tabloid, were alleged to have hacked the voice message of 100s of people, most notoriously murdered schoolgirl Milly Dowler. Several criminal trials of senior News International figures continue at time of publication.

As allegations of dubious behaviour began to be made against other papers, judge Sir Brian Leveson was charged with leading an inquiry into the industry. The inquiry, which opened in late 2011, heard from a huge range of people, from celebrities to civil society activists.

An increasingly polarized debate has seen the newspapers lined up on one side, opposed to the current Royal Charter, and campaign group Hacked Off, as well as the major political parties, on the other. The newspapers plan to set up their own regulator, the Independent Press Standards Organisation, which may not seek recognition under the Royal Charter. It is claimed that IPSO will be operational by 1 May. This would be funded by the newspapers, with representation from the industry on its governing bodies.

Hacked Off and their supporters, who claim to represent the interests of victims of phone hacking and press intrusion, say that the newspapers cannot “mark their own homework”, and insist that any regulator must be “Leveson compliant” and recognised under the Royal Charter.

There have been confusing political signals. While Culture Secretary Maria Miller suggested that IPSO, if it functioned well, may not need to apply for recognition, the Prime Minister David Cameron told the Spectator magazine that he believed that the Royal Charter was the best deal the press would get, and that publishers should sign up lest a more authoritarian scheme be introduced.

Index on Censorship has opposed the Royal Charter and supporting legislation on several grounds.

– Changing the Royal Charter While supporters claim the Royal Charter cannot, practically, be changed by politicians, Index believes it would be possible to gain the two-thirds majority required in both houses to alter it, particularly if there were to be another hacking-style scandal. The Privy Council is essentially a political body, and recognition by royal charter a political tool.

– Exemplary damages The Crime and Courts Act sets out that an organisation which does not join the regulator but falls under its remit will potentially become subject to exemplary damages should they end up in court. In addition, even if they win, they could also be forced to pay the costs of their opponents. While it is claimed that membership of a regulator with statutory underpinning is voluntary, it is clear that there are severe, punitive consequences for those who remain outside the regulator. There is controversy over whether this is compatible with the European Convention on Human Rights.

The imposition of exemplary damages is likely to have a strongly chilling effect on freedom of expression – this could be particularly felt by already financially squeezed local publications and small magazines.

– Corrections The Royal Charter proposes the regulator will be able to “direct” the wording and placement of apologies and corrections. This is an effective transfer of editorial control. It represents a level of external interference with editorial procedures that would undermine editorial independence and undermine press freedom. A tougher new independent regulator could reasonably require corrections to be made, but directing content of newspapers is a dangerous idea.

– Scope The Royal Charter is designed, in its own words, to regulate “relevant” publishers of “news-related material”. It sets out a very broad definition of news publishers and of what news is (including in the definition celebrity gossip). Despite some subsequent attempts by politicians to establish some exclusions, such as for trade publications and charities for instance, the attempt to distinguish press from other organisations remains problematic. In a media industry undergoing rapid change, distinctions between platforms are increasingly blurred, and stories from unlikely sources can have every bit as much impact as those from the traditional media whose power pro-regulation activists seek to curb.

The next few months will be crucial as IPSO and alternatives, such as the IMPRESS project, take up positions. IPSO will be keen to recruit publications that have not already joined and present itself as fait accompli, pointing out that nowhere in the Leveson recommendations is there specific mention of a Royal Charter.

But at the core of the entire argument is the fundamental fact that the government has been willing to use coercive, punitive measures specifically directed at the press.

Libel – a free speech victory?
On 1 January, the Defamation Act 2014 became statute. The new law, represented a victory for the Libel Reform Campaign led by Index on Censorship, English PEN and Sense About Science. The LRC had its roots in two things – English Pen and Index on Censorship’s report “Free Speech Is Not For Sale” and Sense About Science’s campaign “Keep Libel Laws Out Of Science”.

That campaign identified key problems with England’s libel law, which was simply not fit for the internet age. Among the issues were the ease with which foreign claimants could bring cases in London courts, and the lack of a coherent statute of limitation on web publication.

The new act, while still far from perfect, is, at least on paper, an improvement on what has gone before. It should in theory provide greater protection for writers.

Among the changes are the introduction of a strong public interest defence, a one-year statute of limitation on online articles (where previously each new “download” counted as a new publication), and a “serious harm” test for corporations wishing to sue for defamation.

One major point of concern is the refusal of Northern Ireland’s government to update its statute books in line with that of England and Wales. Libel lawyer Paul Tweed, who practices in Belfast, Dublin and London, has pointed out that wealthy litigants hoping for a more claimant-friendly regime may now take cases to Belfast rather than London. It is imperative that pressure continues to be put on the political parties in Northern Ireland to introduce the new legislation.

Surveillance and protection of sources
There is little doubt about what was the biggest global story in 2013. The revelations about global surveillance carried out by the US’s National Security Agency, with the help of Britain’s GCHQ, dominated much of the global conversation. But while the US has made some noises about reviewing its surveillance procedures (though it has shown no intention of halting its pursuit of whistleblower Edward Snowden), the UK government managed a very special combination of burying its head in the sand and shooting the messenger.

The Prime Minister warned the Guardian that it should stop publishing revelations or face legal action. Guardian editor Alan Rusbridger was summoned before parliament and accused of deliberately endangering British security.

Security officials even visited the Guardian and demanded that hard drives containing leaked material be destroyed in front of them, in spite of the fact they were aware the data was also held elsewhere.

David Miranda, the partner of the Rio-based journalist Glenn Greenwald, was stopped at Heathrow airport under terror legislation. This was clearly done in order to confiscate source material.

That action was challenged in the courts by Miranda, with Index on Censorship entering evidence in support of the case. The legal challenge to the detention of Mr Miranda has been dismissed by the High Court, though there is the possibility of an appeal.

The case raises serious questions about protection of journalists’ materials and sources. There was also grave concern that terror legislation was used against a person carrying out journalistic activity.

Meanwhile, the government has proposed, as part of the deregulation bill, a new system which would make it easier for authorities to force journalists to hand over materials and information about sources. The Deregulation Bill could, if passed unamended, strip away safeguards for journalists faced with demands for their materials from police, removing the requirement for judicial scrutiny of such demands.

2014 will be a crucial year, not just for newspapers, but for free speech for everyone in the UK. For as the wall between publisher and consumer is rapidly being dismantled, it will become harder and harder to compartmentalise press freedom and general principles of free speech.
While the reform of our libel laws will, we hope, be of great benefit to to free expression in the UK and beyond, there are still several areas where this government can act to safeguard the free press and free speech more broadly in the coming year. Chief among these is that we must allow press self-regulation to proceed without coercion. No one should be forced to sign up to the press Royal Charter, and no one should be subjected to exemplary damages. In short, self-regulation should be just that.

Moreover, the government should state its commitment to protection of journalistic sources, a crucial cornerstone of the fourth estate which has come under severe threat as a result of the Miranda case.

Finally, the government should ensure that Belfast does not become a haven for libel tourism, by doing everything it can to support the extension of the new Defamation Act to Northern Ireland.

New press regulator would not stop phone hacking, says Index panel

The panel from left to right: Gavin Millar QC, Tom Phillips, Padraig Reidy, Jonathan Heawood and Gill Phillips (Image: Georgia Hussey)

The panel from left to right: Gavin Millar QC, Tom Phillips, Padraig Reidy, Jonathan Heawood and Gill Phillips (Image: Georgia Hussey)

A new press regulator, with or without statutory underpinnings, would not stop another scandal like phone hacking from happening, an Index on Censorship  panel said yesterday. The panel, consisting of Gill Phillips (Legal Director, Guardian Media Group), Gavin Millar QC (Doughty Street Chambers), Jonathan Heawood (Director of the Impress Project), and Tom Phillips (Senior Writer, Buzzfeed UK), chaired by Padraig Reidy, spoke at a Doughty Street Chambers and Index on Censorship debate on press freedom in the UK after the Leveson inquiry.

“In terms of the institutions that failed over phone hacking, the Press Complaints Commission doesn’t even make it onto the podium,” said Tom Phillips.  “So the idea that any kind of regulation was ever intended to be the solution to this is missing a whole bigger picture.”

If you set up a system to stop something “human ingenuity and imagination” will find a way to get around it, said Gavin Millar QC. He added that the best regulation “has to come from the heart”, and was worried about the complicated rules surrounding regulation taking the responsibility away from those “who are putting the stuff out.”

Jonathan Heawood argued that we can make press abuses “less likely” though a “good, intelligent, intelligently applied regulator” and “sufficiently enforced, sufficiently clear sanctions”.  He added that regulation is “part of the solution” to improve conditions allowing public interest journalism to flourish.

Press regulation took centre stage at the event, but wider issues of press freedom were also discussed. Gavin Millar pointed out how the UK’s debate on press freedom and press regulation may be perceived in authoritarian countries, while Tom Phillips warned that ignoring the evolving social norms of the internet age bad is for press freedom. Gill Phillips argued that while the UK isn’t as bad on press freedom as some other countries, “where we’re going” and “the threat of criminalisation that effects every day journalism” is worrying.

The event took place ahead of the release of Index on Censorship’s policy paper Life after Leveson: British media freedom in 2014. The paper acknowledges that the recent change in libel law was good for this country’s press freedom, “the record of successive governments have been far from perfect” and “there are still several areas where this government can act to safeguard the free press and free speech more broadly in the coming year.”

It was a timely discussion, as yesterday the High Court dismissed David Miranda’s challenge to his detention at Heathrow under the Terrorism Act in August. It was also the day former News of the World editor Rebekah Brooks took the stand in the ongoing hacking trial.

“The [Miranda] judgement has some wide ranging views downgrading  journalism in the 20th century that I find personally bizarre,” said Philips. Millar said the judgement shows how the “remaining tendency of government using the possibility of court proceedings against newspapers to stifle the publication of state secrets” has a “chilling effect” on press freedom.

The sold-out event encouraged audience interaction, which made for a lively and at times heated, debate. One comment from the floor argued the panel had missed the point — that the debate was about press abuses, and a regulator was the minimum step that had to be taken. Another audience member questioned the press calling for regulation of other industries, but not wanting to be regulated themselves. The Guardian’s Roy Greenslade argued that we need to separate those issues of press abuse that can be tackled through the law and those that must be tackled by self-restraint on  the part of the media. Observer columnist Peter Preston said the Royal Charter regulator would be part of a “conspiracy of chaps”.

The discussion also took place on Twitter, under the hashtag #LifeAfterLeveson

This article was published on 20 February 2014 at

High Court dismisses David Miranda challenge to Heathrow detention

David Miranda (Image: Elza Fiúza/Agência Brasil/Wikimedia Commons)

David Miranda (Image: Elza Fiúza/Agência Brasil/Wikimedia Commons)

Index on Censorship today expressed disappointment at the High Court’s dismissal of David Miranda’s application for a judicial review of the use of anti-terror laws to detain him at Heathrow Airport.

“This ruling represents a dangerous elision of terrorist activity and legitimate journalistic practice,” said Kirsty Hughes, Chief Executive of Index on Censorship. “We must hope that it will not stand as precedent, as it could seriously endanger journalists working in the public interest.”

Mr Miranda, the spouse of journalist Glenn Greenwald, was stopped and searched under Schedule 7 of the Terrorism Act 2000 on 18 August 2013. He had been carrying encrypted files and documents originating from Edward Snowden’s leak of information on the National Security Agency’s mass surveillance programme.

A coalition of media and free speech organisations, including Index on Censorship, argued that it is inappropriate to use terror laws against someone such as Miranda, who was engaged in journalistic activity in transporting the documents intended to be used as source material for news stories in the public interest.

But the High Court today ruled that the use of the Terrorism Act did not infringe David Miranda’s right to free speech, or the rights of journalists to protect sources and materials. In his judgment, Lord Justice Laws ruled that the Schedule 7 detention of Miranda had been proportionate and did not “offend” his right to free speech under the European Convention on Human Rights.

Read the full judgment here

This article was published on 19 February 2014 at

Open letter to the chair of the Home Affairs Select Committee

Dear Rt Hon Keith Vaz MP,

Index on Censorship is writing to you ahead of Guardian editor Alan Rusbridger’’s appearance before the Home Affairs Select Committee’’s hearing on counter terrorism.

We believe that the Guardian’’s publication of details of GCHQ’’s digital surveillance techniques has been very much in the public interest.

Mass data retention and monitoring is a hugely important issue. As more and more of our lives are lived online, it is only right that British people should  know how and why the security services gather and monitor digital information. We should be able to debate whether the security services are acting legitimately, legally and proportionately, or are going beyond what is suitable and proper in any democratic, rights-based society. The Guardian’’s revelations should be the beginning of a public debate on how this work is done, and with what oversights.

We are concerned that rather than a debate being opened up, the focus has instead been on criticising the Guardian’’s work, with even the Prime Minister threatening to take action against the newspaper if it did not take “social responsibility”. Index on Censorship maintains that the Guardian has shown great social responsibility in investigating, reporting and publishing the details of this story, having maintained open communication with security services and the DA Notice committee.

The Guardian has also lived up to the responsibility of a free press to reveal facts and issues of interest to the public. A British newspaper should be able to report on these issues without fear of retribution. But comments made by politicians and the security services made have led many round the world to question Britain’’s commitment to press freedom. For example, the New-York based Committee to Protect Journalists rightly pointed out that:  “Governments around the world look to the UK as a model for media policies, but in this case, Cameron seems to be taking a page from the book of less enlightened governments that invoke ‘social responsibility’ to ward off valid criticism.”

Finally, Index on Censorship is troubled by the use of counter-terror measures to detain David Miranda, the partner of former Guardian journalist Glenn Greenwald. We believe the use of terror legislation to obtain journalistic materials, without court oversight, is a threat to free expression and to anyone involved in journalism. As part of a coalition of newspapers, journalists’ organisations and campaigners which submitted an intervention to the judicial review of Mr Miranda’’s detention at Heathrow airport, we are concerned that using Schedule 7 of the Terrorism Act 2000 against people engaged in journalistic activities runs a real risk of conflating journalism–particularly journalism investigating the intelligence services–with terrorism.

Yours sincerely

Kirsty Hughes, Chief Executive

Index on Censorship