Index on Censorship welcomes the delay in the Royal Charter recognition of Impress by the Press Regulation Panel and hopes it provides an opportunity for further consultation. We are extremely concerned that recognition of Impress has the potential to introduce punitive measures for small publishers and to stifle investigative journalism. We are also concerned that about the transparency of its funding. These are factors that threaten freedom of the press.
We hope the decision today gives an opportunity for a rethink.
Index remains concerned that, aside from the Royal Charter, other elements of legislation introduced in the wake of the Leveson Report represent a threat to media freedom. One of the most worrying of these is Section 40 of the Crime and Courts Act 2013, which sets out that an organisation which does not join a recognised regulator but falls under its remit (through being considered a “relevant publisher”) will potentially become subject to exemplary damages should they end up in court, and could also be forced to pay the costs of their opponents.
Such measures could be especially punitive for small publishers and news organisations with limited financial means.
There are two principles here that threaten a free press. Firstly, that in effect joining a regulator becomes less than voluntary if you have the threat of punitive damages hanging over your head. Secondly, that those who do not join and therefore feel under threat of exemplary damages will skirt away from controversial subjects and investigative journalism, and opt instead for “safe” stories.
Such measures could be especially punitive for small publishers and news organisations with limited financial means. This has a damaging effect on free expression. Supporters of this aspect of the act argue that exemplary damages would only apply to “reckless” action by journalists, but it is possible that a court could find that a breach of Article 8 rights to privacy and reputation was by definition “reckless” even when a journalist was pursuing an investigative news story in the public interest.”
Impress said in January it would accept donations of £3.8 million to cover the first four years of expenditure, which have been reported as coming almost exclusively from The Alexander Mosley Charitable Trust. The organisation’s own website provides only scant information about its current funding.
Although Impress has said it would not “be beholden to anyone” and that a charity would act as “buffer” between any donor from which it receives funds, the idea that a single wealthy individual should control the purse strings for a supposedly independent regulator should strike fear into the hearts of those who believe in a free press.
Index, a small publisher since 1972, has not signed up to a regulator.
21 October 2016: An earlier version of this article incorrectly stated that section 42 (3) of the Crime and Courts Act sets out that an organisation under its remit could be subject to damages if it does not join a recognised regulator.
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.
In a move that may have left a few people slightly confused, the Daily Mail has published an editorial in support of the BBC.
The Mail’s traditional antipathy to the BBC notwithstanding (“its monstrous bureaucracy, its unthinking profligacy with licence fees, its manifold editorial misjudgements or its all-pervading soft-Left bias”), the paper is critical of suggestions that the corporation’s oversight body, the BBC Trust, should have its functions transferred to communications regulator OfCom and the National Audit Office. The Trust has faced criticism as excessive remuneration and severance packages have led to accusations of waste and cronyism.
So why on Earth would the Daily Mail defend this?
For very obvious reasons actually. The Leveson report of 2012 suggested that, should a self-regulatory body established by the press fail to meet the criteria set out by the Lord Justice, OfCom could step in as a “backstop” regulator.
If as the Mail’s editorial suggests in regard to BBC budgeting, “It is simply not safe to entrust such power to a quango answerable to MPs, with their vanity, partisan agendas and propensity to bear grudges.”, then surely the self same proprietors of all that vanity, partisanship and grudgery should not be allowed even the slightest control over the free press.
So what’s the Mail’s solution for the BBC?
Surely it cannot be beyond the wit of man to devise a genuinely independent regulator, with the authority to ensure value for money and true impartiality.
We’re not necessarily just talking about the BBC here, are we?
Meanwhile last week David Cameron, resplendent in new reading glasses, told the Commons Liaison Committee he feared an “impasse” in progress on press regulation. While voicing support for a cross-party Royal Charter regulatory proposal rather than the alternative suggested by the majority of the newspapers, Cameron suggested that the leaders of the other main parties, as well as the press, may need to give some leeway in negotiations:
“To be clear I am committed to the cross-party charter. We all signed it, we agreed it. We should progress it but it would be good if we could find some way for everyone to see that it would be better if you ended up with a cross-party charter that the press seek recognition with. But it is a cross-party issue so this is something all party leaders have to address.”
Professor Brian Cathcart of Hacked Off, the group campaigning for the imposition of the Royal Charter, claimed in an article for Huffington Post that the idea of an “impasse” had been planted in the prime minister’s head by newspaper editors, declaring “There is no impasse; there is a process.”
But in which direction we are to proceed may still be up for grabs.