‘This is not, and cannot be characterised as, statutory regulation of the press.’
This is the headline from the Leveson report. That said, Lord Justice Leveson recommends substantial changes to the current self-regulatory system, including changes that empower the civil courts. The changes will be underpinned by legislation to validate the new regulator, to guarantee independence from the industry, parliament and government, and to ensure compliance with certain guidelines.
These changes are the consequence of the failure of the existing regulatory system and widespread press malpractice. Indeed, the report damns Fleet Street. Lord Justice Leveson ‘wholly rejects’ the analysis that activities at now notorious publications were ‘aberrations and don’t reflect the cultures, practices or ethics of the press as a whole’. The problems within the press are so entrenched that there must be wholesale reform of press practice and press regulation rather than the criminal justice system and the police, which, arguably, may have provided redress to victims earlier. Leveson writes that ‘more rigorous application of the criminal law… Does not and should not provide the solution’. The police escape lightly and Leveson has found no evidence of widespread corruption.
Leveson’s regulatory proposals are laid out between paragraphs 47 and 76 of the executive summary. He suggests a new code been drawn up by a committee of former editors to be submitted to the new regulatory body. He insists that they take into account the need for proper documentation to be kept to prove that the public interest angle on each story has been properly assessed; this is part of what Leveson describes as greater ‘transparency’ from the press ‘in relation to sources and source material’.
Leveson’s most controversial proposals concern ‘the very difficult question of participation’. He intends to incentivise membership through the provision of an arbitration service on civil matters like libel. The word ‘incentive’ is strange in relation to paragraph 67, where Leveson writes:
‘If, by declining to be part of a regulatory system, a publisher has deprived a claimant of access to a quick, fair, low cost arbitration of the type I have proposed, the Civil Procedure Rules (governing civil litigation) could permit the court to deprive that publisher of its costs of litigation in privacy in defamation, privacy and other media cases, even if it had been successful. After all, it’s success could have been achieved far more cheaply for everyone.’
The incentive that comes with this new body, therefore, is a stick dressed as a carrot, and it dramatically increases the discretionary powers of the civil courts. There are further recommendations about what recourse might available against publications that are found to have trangressed ‘civil legal rights’; again, the answer is for courts to impose costs in the hope of coercing miscreants into compliance. On the other hand, Leveson proposes that those private individuals who bring expensive libel actions rather than pursuing a course of arbitration should be subject to the same penalties as the press; this is designed to stop rich or well funded people with something to hide who use the prospect of costly legal action in order to frighten the media from reporting. Leveson recommends that the arbitration committee be staffed by former judges and lawyers who are au fait with media law so that they are able to judge meritorious claims and achieve swift resolution.
These changes to the legal and regulatory system are substantial, and Leveson recognises that such provisions would need ‘legislation to underpin the independent self-regulatory system and facilitate its recognition in legal processes’. That is to say that the new body would be created by the press industry and then recognised by law; thus independence would be preserved and clear standards would be established. Under Leveson’s proposals, the only legal requirement placed on the press is to ‘direct the placement and prominence of corrections and apologies in respect of information found, by that body, to require them’. Leveson recommends that Ofcom has responsibility for assuring the public that the self-regulatory body meets its own requirements; thus maintaining standards and independence.
If the industry – or elements of the industry – do not comply with new regime and its standards, Leveson describes how the government might achieve compliance. One of these options is that Ofcom might act as a “backstop regulator for those not prepared to join such a scheme”. Leveson stresses that these are no recommendations; but merely a discussion of possible ways forward should the need arise.