Here is a six-point guide to the regulatory system proposed by Lord Justice Leveson:
1) The creation of a genuinely independent regulator
Leveson agrees with the view, expressed by Baroness O’Neill and others, that ‘independent regulation’ does not mean ‘self-regulation’. The existing system of self-regulation should be wound up. In its place should emerge a regulator that is both independent of the government, parliament and the industry. It should be ‘established and organised by the industry’ in order to provide ‘effective regulation of its members’. Leveson does not rule out the emergence of multiple regulatory bodies, and indeed allows for it, but he does not advocate such an outcome.
2) How will it actually be independent?
The body will be independent of government and the legislature because it has been ‘established and organised by the industry’. It will be operationally independent of the industry thanks to the governance provided by an Independent Board, appointed in a ‘genuinely open, transparent and independent way, without any influence from industry or Government’. The appointment panel, which will choose both the Board’s members and its chairman, will be appointed transparently. A ‘substantial majority of its members’ should be ‘demonstrably independent of the press’; and it ‘should include at least one person with a current understanding and experience of the press’; and it should include ‘no more than one current editor of a publication that could be a member of the body’. Funding for the independent body should be agreed to between the industry and the Board.
3) What will the body do?
It will be responsible for a standards code, which will be drawn up by a committee of serving editors and independent figures. The code must consider issues surrounding freedom of speech, accurate reporting, public interest (including the action required to uncover criminal offences and impropriety) and individual rights to privacy. Leveson recommends that the press become more transparent in the way it researches and reports stories, and also that editors should publish evidence of their compliance with the new system to reassure readers and the public. Complaints will be handled by the Board independently of the press.
In order to ensure that the body and Board fulfil their functions and maintain standards, it is necessary, Leveson argues, that ‘the law must identify those legitimate requirements and provide a mechanism to recognise and certify that a new body meets them’. This is partly an obtuse way of saying that the industry will establish the independent body, which will then draw up the code, complaints mechanism and so forth, and then that will be validated by legislation.
4) What’s on offer for those who object to a newspaper report?
Leveson says that no-one, not even the Board, will have the power to prevent publication. But the Board will have the power to investigate allegations and it should have the power to direct appropriate remedial action for a breach of standards and direct the publication of corrections and apologies. Beyond that, the Board will have the power to impose financial sanctions (of 1 per cent of turnover with a maximum of £1million) on systemic transgressions.
5) Is Leveson’s arbitration carrot actually a stick?
As I noted in this earlier post, the carrot of arbitration is in fact a very hefty stick in the form of court costs, because Leveson recommends that:
‘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 (ie, at the court’s discretion) to deprive that publisher of its costs of litigation in privacy in defamation, privacy and other media cases, even if it had been successful.’
The same discretionary rules apply for those who use the expensive courts rather than the cheap arbitration system in order to frighten press defendants into submission.
The proposals amount to a significant expansion in the power of the civil courts and judicial discretion. Leveson even goes so far as to say that it:
‘would be appropriate for it to be open to a court to award aggravated or exemplary damages (ie, punitive charges on the defendant rather restorative damages for the victim) against an unsuccessful defendant who has not only failed to demonstrate a proactive commitment to high journalistic standards but also deprived a complainant of access to fast, fair and inexpensive arbitral mechanism by refusing to join an independent regulatory body.’
As Lord Justice Leveson humbly submits, ‘this would require a change in the law’.
6) Will anyone be regulating the regulator?
In a word, yes. As we have seen, Leveson recommends that parliament ‘provide a mechanism to recognise and certify’ that the body and Board are fulfilling their functions. Leveson recommends that Ofcom is best placed to perform the task of the ‘recognition body’. He goes on to say that Ofcom should have means of reviewing the body and the Board, and Ofcom’s competences should be defined in the legislation that validates the independent body and the Board. As the legislation will ‘provide for a process of recognition and review’ of the body by another regulatory agency, Leveson insists that the law must ‘place an explicit duty on the Government to uphold and protect the freedom of the press’.
But that is not all. Lord Leveson suggests that, should the industry fail to establish a sufficiently respected regulator, Ofcom might be appointed a ‘backstop regulator’. He sees no problem with it performing a ‘dual role’; though he states that he isn’t advocating that himself.