Foreword by Tim Luckhurst
Press Freedom: Restoring Britain’s Reputation
‘Our liberty cannot be guarded but by the freedom of the press, nor that be limited without danger of losing it.’ - Thomas Jefferson
In January 2014 I felt honour bound to participate in a meeting, the very existence of which left me saddened and ashamed. Convened in a small seminar room at the London School of Economics, the gathering was scheduled at the request of the World Association of Newspapers (WAN-IFRA) in furtherance of its global mission to defend press freedom, quality journalism and editorial integrity. It was galling that WAN should feel the need to turn its attention to this country, which has done more than any other to prove the value to democracy of a diverse and vigilant free press.
As those attending took their seats, my thoughts turned to recent cases in which newspapers had held power to account in the public interest. The Guardian’s patient and persistent revelations about phone hacking at the News of the World came to mind instantly; then The Times’ ongoing investigation of ruthless and organised sexual exploitation of children in Rotherham, South Yorkshire; finally the Daily Telegraph’s diligent exposure of abuse by MPs of their parliamentary expense accounts. Each of these stories makes the case for journalism unhindered by prior restraint. Countless examples from British history confirm and reinforce it.
This is the country in which William Howard Russell of The Times first demonstrated through his coverage of the Crimean War the power of honest, eyewitness reporting to reveal official incompetence and topple governments as long ago as 1854; it is the land in which W.T. Stead’s Pall Mall Gazette exposed the horrors of child prostitution before the end of the nineteenth century; in which the Yorkshire Post proclaimed the perils of appeasement even as Neville Chamberlain promised ‘peace for our time’.
But I was not reassured; I was truly miserable because I understood entirely the WAN delegation’s need to visit Britain for the first time in the organisation’s 110-year history.
Since the abolition of press licensing in 1695, Britain’s newspapers had been free from direct oversight by government. Now, following the Leveson Report and The Guardian’s revelations regarding digital surveillance, the threat of press regulation backed by Royal Charter loomed large. It was clear that the WAN representatives could hardly believe it: the Westminster Parliament, which had promoted press freedom as a core democratic principle since the middle of the nineteenth century, was now threatening to restrict editorial independence. The latest manifestation of an unelected cabal that since 1979 has been conspiring to tame the press was supporting them.
I listened in dismay as ideological enemies of the newspaper industry zealously sought to persuade the WAN team - including journalists from countries in which repressive regimes routinely suppress and censor honest reporting – that a regulator authorised by Royal Charter was compatible with press freedom. The WAN delegates were plainly appalled. Their report, published a few months later, pulled no punches. It concluded that: ‘Self-regulation remains the ideal model for press regulation in that it guarantees the least restrictions to the freedom of the press.’ It warned that the Royal Charter proposal represented ‘a fundamental shift…from the principle of zero involvement of politicians in press regulation’. It raised concerns that foreign governments would seek to exploit evidence that Britain was punishing and controlling its newspapers as an excuse to implement similar restrictions with still more repressive consequences. In short, it confirmed, reinforced and amplified the very serious concerns I had raised, before publication of the Leveson Report, in my pamphlet, ‘Responsibility without Power: Lord Justice Leveson’s constitutional dilemma’. It emphasised the stark truth that, no matter how ostensibly well intentioned, regulation of the press by any organisation authorised by the state creates the polar opposite of true press freedom. It exposed as profoundly misguided the Hacked Off Campaign’s fantasy that a happy compromise can be found somewhere between self-regulation and statutory regulation. It revealed as deplorably self-serving that campaign’s efforts to imply that the Royal Charter, which Lord Justice Leveson had emphatically not suggested, was in some way less oppressive than regulation by statute, which he had rejected equally emphatically.
The WAN delegation’s mere presence in the UK confirmed the decline of this country’s global reputation for press freedom since the publication of the Leveson Report and parliament’s decision to create a Royal Charter on Self-Regulation of the Press. It brought shame on a nation that many journalists struggling against censorship and intimidation had been accustomed to regarding as a beacon of enlightenment. It illustrated the collapse of a long-established political consensus whereby Conservative, Labour and Liberal Democrat politicians alike had understood that a healthy democracy requires a robust, independent, and sometimes unlovable press. It confirmed the wisdom of the Organisation for Security and Cooperation in Europe’s view that: ‘Voluntary self-regulation schemes should be preferred to government-mandated ones’ and ‘state interface of any kind except supporting voluntary agreements’ is ‘entirely wrong’. It underlined the virtue of Index on Censorship’s argument that: ‘[A] free press must be just that – free from political interference, including from politicians voting on the establishment of, and characteristics of, a press regulator.’
1/ WAN-IFRA (2014). Press Freedom in the United Kingdom. Available online at www.wan-ifra.org.
2/ Tim Luckhurst (2012). Responsibility without Power: Lord Justice Leveson’s constitutional dilemma. Bury St. Edmunds: Abramis Academic.
3/ LSE Media Blog (2013). OSCE Representative on Freedom of the Media ‘Monitoring’ UK Policy. Available online at http://blogs.lse.ac.uk/mediapolicyproject/2013/05/21/osce-representative-on-freedom-of-the-media-monitoring-uk-policy/
4/ Index on Censorship (2013). Leveson, the Royal Charter and press regulation. Available online at https://www.indexoncensorhip,org/2013/04/index-on-censorship-leveson-roy...
5/ Royal Charter on Self-Regulation of the Press (2013). Available online athttps://www.gov.uk/government/uploads/system/uploads/attachment_data/file/254116/Final_Royal_Charter_25_October_2013_clean__Final_.pdf
6/ European Convention on Human Rights (1950). Available online at http://www.echr.coe.int/Documents/Convention_ENG.pdf
7/ Liberty (2013). Royal Charter inappropriate mechanism to implement press regulation. Available online at https://www.liberty-human-rights.org.uk/news/press-releases/liberty-royal-charter-inappropriate-mechanism-implement-press-regulation
8/ IPSO Editors’ Code of Practice (2014). Available online at https://www.ipso.co.uk/IPSO/cop.html
9/ IPSO (2015). About IPSO. Available online at https://www.ipso.co.uk/IPSO/aboutipso/aboutipso.html
12/ Guardian (2015). Operation Elveden: Andy Coulson and eight other cases dropped by DPP. Available online at http://www.theguardian.com/uk-news/2015/apr/17/operation-elveden-andy-coulson-cases-dropped-dpp
13/ Leveson Report (2012). Vol. IV, p. 1512, para. 5.12
14/ Tim Luckhurst (2012). Missing the Target and Spurning the Prize. Available online at http://webarchive.nationalarchives.gov.uk/20140122145147/http:/www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Submission-by-Professor-Tim-Luckhurst.pdf
15/ See James Curran and Jean Seaton (2010) Power without Responsibility 7th Edition, Routledge, p. 339
16/ See James Watson (2008) Media Communication, Palgrave Macmillan, p 367
17/ Media Reform Coalition (2015). Manifesto for Media Reform. Available online at http://www.mediareform.org.uk/wp-content/uploads/2014/12/2517_CPBF_MRC-nov14b.pdf
18/ George Orwell (1945). ‘The Freedom of the Press’, a proposed introduction to Animal Farm. First published in The Times Literary Supplement, September 15, 1972
21/ Walter Merricks (2015). Why Impress is Seeking Regulation as an Independent Press Regulator. Available online at http://blogs.lse.ac.uk/mediapolicyproject/2015/05/21/why-impress-is-seeking-recognition-as-an-independent-press-regulator/
The fallout from the Leveson Inquiry and report has left the British press facing the most substantial threat to its freedom in the modern era.
Legislation establishing co-regulation of the press, with coercive legal measures, could seriously chill our news media. Co-regulation is unusual and has been condemned by international bodies when introduced in other countries.
The punitive costs measures introduced in post-Leveson legislation are likely to breach the European Convention on Human Rights and international norms.As this report sets out, such a legal regime could have prevented the publication of stories vital to the public interest, such as the MPs expenses scandal.
Press freedom in the UK has developed over several hundred years. Since the abolition of the Licensing Act in 1695, Britain has not had a statute specifically aimed at controlling the content of the press, above and beyond laws that apply to everyone, such as defamation.
Since the post-war Labour government, successive administrations have commissioned inquiries into the press, for a variety of reasons, from perceived bias, to ownership and funding.
The Leveson Inquiry was announced in 2011, in response to a public outcry about phone hacking. It was to be a two-part inquiry into the role of the press and the police in the phone hacking scandal.
Part one of the inquiry considered the culture, practice and ethics of the press, but legal constraints relating to ongoing police investigations prevented extensive consideration of the very issue that prompted the inquiry.
The focus went far beyond phone hacking, with a whole range of lobbying groups pressing the inquiry to consider topics that were only very distantly related (if at all) to the issue at hand.
Part two of the inquiry, which was due to look specifically at the issue of phone hacking and payments to police, has not happened, and may never do so.
The Leveson Inquiry made a number of recommendations which have implications for the free press. These include the restriction of everyday contact between the press and police officers, making it more difficult for journalists to protect their material and keep their sources confidential; and narrowing the data protection exemption for journalists.
Lord Justice Leveson also made a series of recommendations for press regulation.
Some of these were incorporated into a proposed regulatory system, which involves a panel established and funded by the state officially recognising regulators which meet conditions set out in a Royal Charter, as well as legislation which rewards publishers for signing up to the recognised regulator and penalises those who do not.
In addition, the recognised regulator will have to offer an arbitration service which is free to complainants. This may not always be an appropriate way of resolving a dispute and will be a costly process that small and medium-sized publishers can ill afford.
The Royal Charter and associated legislation in the Crime and Courts Act and the Enterprise and Regulatory Reform Act were barely debated by Parliament. Just 13 hours of parliamentary time was devoted to debate on the issue of press regulation. Legislation was shoe-horned into unrelated bills which were already close to being passed. The Royal Charter itself was introduced by ministers through the Privy Council.
The post-Leveson regime is likely to breach human rights legislation, specifically Articles 6, 10, and 14 of the European Convention on Human Rights (ECHR).
It restricts access to the courts, by virtually compelling the use of arbitration and making it unaffordable for defendants which have not signed up to a recognised regulator to defend a media related claim; it restricts the right of the press to freedom of expression by making it prohibitively expensive to stay independent outside of a recognised regulator; and it discriminates between certain types of publisher (including the mainstream printed press) and others in the application of these rights.
Self-regulation of the printed press is a principle asserted by international human rights bodies and NGOs. The UK’s use of statute in regulating the press breaches international human rights standards. The impact of one the world’s leading democracies abandoning self-regulation for the printed press with little parliamentary debate has already been felt globally.
In November 2015, part of the legislation aimed at regulating the press came into effect. Furthermore, the Press Recognition Panel has received its first application for recognition from an aspirant regulator with just a handful of very small micro-publishers as members. It is now vitally urgent that press freedom is defended.
The relevant sections of the Crime and Courts Act must be repealed, and the Royal Charter annulled. Furthermore, public interest defences should be introduced across the range of legislation that can affect journalists, and protection of sources must be strengthened.
Chapter 1. Why is the free press important?
This chapter explores the history and development of the free press in the UK and explains why a free press is fundamental to an open and pluralistic democracy.
Press freedom is the hallmark of a civilised society and a guarantor of democracy. But, much as democracy itself, it is often taken for granted and seen as a natural state, rather than seen as a product of concerted struggle.
Now, for the first time in centuries, we are faced with a substantial step backwards, with legislation introduced in statute specifically aimed at curbing the press.
Over more than 300 years, freedom of the press in England and Wales has advanced in fits and starts. The UK does not have an American-style constitutional commitment to this. But freedom to print what one wished, and to read what one liked, has been an aspiration since the time of Caxton.
The journey towards a free press in Britain began in 1695, when the Licensing Act (the ‘Act for Preventing the frequent Abuses in Printing Seditious, Treasonable and Unlicensed Books and Pamphlets; and for the Regulating of Printing and Printing Presses’) was left unrenewed. The Act, in place since 1662, was squarely aimed at controlling what came off the presses. Its disappearance led to the modern newspaper industry as we know it, with dozens of journals and papers emerging across the country.
This abundance was quelled by the 1712 Stamp Act, which levied a tax on each copy of a newspaper, putting news beyond the reach of many. It was no coincidence that the Act appeared at a time when papers and pamphlets critical of the status quo were flourishing. In a letter dated 7 August 1712, barely a week after the act came into force, Jonathan Swift complained:
‘Do you know that Grub Street is dead and gone last week? No more ghosts or murders now for love or money. I plied it pretty close the last fortnight, and published at least seven penny papers of my own, besides some of other people’s: but now every single half-sheet pays a halfpenny to the Queen. The Observator is fallen; the Medleys are jumbled together with the Flying Post; the Examiner is deadly sick; the Spectator keeps up, and doubles its price; I know not how long it will hold.’
Successive governments steadily increased the stamp duty, with the unintended effect of creating a thriving underground press. Publishers who refused to pay the stamp duty and pass the price on to their readers would transport their papers covertly – sometimes in coffins, which the authorities would be reluctant to search. The duty was abolished in 1855. One advertiser in the Manchester Guardian published a celebratory poem, capturing the mood of the time:
‘Today the press, from duty free
Appears on every side;
Whilst competition spreads around
And news is scattered wide.
A perfect flood of papers rise
Like breakers in the storm
Of every size – at every price
And every make and form.’
While the lifting of the duty did indeed encourage a profusion of new publications, it did not bring a free-for-all: laws such as seditious libel continued to constrain the press. Moreover, proprietors and editors of large circulation papers remained conservative and timid.
It would take the launch of the Daily Mail in 1896, and the Daily Express in 1900, for the British popular press as we understand it today to take form.
The rise of the popular press coincided with a period of upheaval in Britain. The emergence of the Suffragettes and the labour movement, combined with the social effects of the First World War marked the beginning of the end of the deference of the Victorian Age. The Daily Mail played a crucial role in the Great War, delivering 10,000 copies to the front every day, and introducing the Soldier’s Friend column, for the first time giving a voice to those doing the fighting.
Though fiercely patriotic in its coverage, the Mail was not afraid to criticise the authorities’ conduct of the war, particularly when it came to the equipment given to soldiers.
Daily Mail proprietor Lord Northcliffe bridled against military censorship: the issue came to a head in 1915 with the ‘Shell Crisis’, when the Mail and the Times attacked the government and military for its failure to supply adequate and appropriate ammunition for the war effort.
The papers’ criticism of Lord Kitchener in particular shocked the establishment, and copies of the Daily Mail were burned in the City of London. But the Mail’s criticism was ultimately vindicated: failings were admitted and a new ministry of munitions was set up under David Lloyd-George. The ability of the free popular press to effect change was now established.
Although deference increasingly loosened its grip after the First World War, the authorities still felt the occasional impulse to curb the free press. In 1942, the Daily Mirror faced the wrath of Herbert Morrison, then Home Secretary in the wartime coalition, for its criticism of the conduct of the war. The communist newspaper The Daily Worker had been banned by Morrison in 1941, and many feared the Daily Mirror would be next.
Michael Foot, then editor of the Evening Standard, rushed to the defence of the Mirror with a stirring and resonant speech, warning that the media’s acceptance of censorship of a popular paper would be a disaster akin to appeasement:
‘The liberty of the press in this country can only be maintained by the vigilance of the people and the vigilance of the Parliament and the courage of the newspapers themselves. That’s the only way. Therefore we must fight, fight, fight to retain those liberties. The ministers come along to tell us that, of course, it’s only the Daily Mirror they were trying to get at. The attack is over, they say. No other demands on any other newspapers. All other newspapers may continue to live in tranquillity and in freedom and in peace. There’s something rather familiar about those words. “I have no more territorial demands”.’
After the defeat of Hitler, the Labour party won a decisive election victory. Incensed by what it saw as a pro-Conservative bias among the newspapers, it set up the first Royal Commission into the press, ‘with the object of furthering the free expression of opinion through the Press and the greatest practicable accuracy in the presentation of news, to inquire into the control, management and ownership of the newspaper and periodical Press and the news agencies, including the financial structure and the monopolistic tendencies in control, and to make recommendations thereon.’
George Orwell sensed a danger that the commission could lead to government interference in the press. Writing in Tribune in 1946, he noted that:
‘What matters is that in England we do possess juridical liberty of the press, which makes it possible to utter one’s true opinions fearlessly in papers of comparatively small circulation. It is vitally important to hang on to that.’
The Royal Commission sat from 1947 to 1949, finally recommending self-regulation for the press in 1953. Subsequent Royal Commissions in 1961-1962 and 1974-1977 suggested improvements to self-regulation, but did not at any point suggest new statutes aimed at the press.
In the late 80s, the newspapers’ focus on sleaze reignited political calls for regulation. Conservative MP Jonathan Aitken summed up the mood, saying: ‘There is a cancer gnawing at the heart of the British press. At the lower end of the tabloid market, journalism has been replaced by voyeurism. The reporters’ profession has been infiltrated by a seedy stream of rent boys, pimps, bimbos, spurned lovers, smear artists bearing grudges, prostitutes and perjurers. That is the force that makes constituents say to members of Parliament: “Get on and do something about it”.'
That ‘something’ was the Calcutt Report of 1991, which led to the creation of the Press Complaints Commission. Aitken was soon after found to have perjured himself in a libel action against a newspaper which had made allegations of sleaze against him.
The story of press freedom in the UK has been one of gradual advances, and steps further and further away from state interference. Centuries of progress and principle were halted in the fallout from the Leveson Inquiry and Report, with punitive legislation rushed through parliament with inadequate consultation, via the archaic instrument of the Royal Charter.
The press will only be free of controversy and contention if it is muted and impotent. That would be the effect of punitive laws, designed to make editors think twice about taking risks to bring their readers the story they want, and deserve, to read. This would be a contravention of the rights and duties of the free press as summed up in a European ruling on the Spycatcher case of 1991: ‘Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog”.’
As we have seen, newspapers provide a vital service. Their coverage of local and regional issues provides the foundation upon which other media build their stories. It is newspapers, free from state interference and regulation, and free to editorialise and campaign, that are best able to hold power to account.
According to the most recent Office of National Statistics records, 60,000 people work as ‘Journalists, newspaper and periodical editors’, in the United Kingdom, the majority for newspapers.
But no one can deny that the industry is under strain. Local newspapers in particular - so often the only means of holding town halls to account - face enormous commercial pressure. The Press Gazette records that between 2005 and 2012, 242 stopped their presses. The very last thing the nation’s remaining newspapers need is a state-mandated regulatory system that could close them down - even if they do manage to survive the upheavals of a changing media world.
Chapter 2. The Leveson Inquiry, Report and Recommendations
Nearly three years on since the Leveson Inquiry, this chapter, considers its background and processes, and looks at some of its key recommendations which present a threat to freedom of expression.
2.1 A background to Leveson
Previous independent inquiries and press complaints bodies
In the post-war period, since the first Royal Commission on the press was instigated by the Attlee government, self-regulation has been held as the norm in the UK. That first Royal Commission led to the creation of the General Council of the Press in 1953. This was the first print industry self-regulatory body tasked with maintaining ethical standards.
A further inquiry into press regulation in 1961 led to the establishment of the Press Council, which focused more on complaints-handling. Its membership panel included 20 per cent lay members, including its chairman, the judge Lord Devlin. In 1974-1977, the third Royal Commission on the Press proposed twelve reforms, including the creation of a code of conduct but stopped short, once again, of recommending statutory powers for enforcement of sanctions.
The first Calcutt Committee, chaired by Sir David Calcutt QC, of 1989-1990 led to the creation of the Press Complaints Commission underpinned by a new code of practice.
The second formulation of the committee reviewed the PCC’s performance after 18 months and produced a report in 1993. The government rejected the recommendation that a statutory Press Complaints Tribunal be set up in 1995.
More recently, the Culture Media and Sport select committee (2010) and the Joint Committee on Privacy (2012) also expressed support for self-regulation, stating: ‘We remain of the view that self-regulation of the press is greatly preferable to statutory regulation, and should continue.’
This changed when Lord Justice Leveson’s recommendations for statutory underpinning of a self-regulatory system were accepted by the government. The industry’s reaction also changed: while maintaining the need for the independence of press from politicians, much of the popular press joined a regulator called the Independent Press Standards Organisation (IPSO). IPSO administers the publications’ Editors’ Code of Practice and handles complaints from the public including issues such as accuracy, invasion of privacy, intrusion into grief or shock, and harassment.
The campaign for Leveson
In July 2011, it was reported that the mobile phone of Milly Dowler, a teenager murdered in 2002, had been hacked while police were searching for her. It was also claimed that messages on her phone had been deleted by hackers working for the News Of The World (NOTW) newspaper, though that assertion was withdrawn later. The report came as evidence mounted of the practice of phone hacking at the paper. It was claimed up to 3,000 people had their messages secretly accessed by journalists and private investigators working for the NOTW.
On 13 July 2011, with political pressure heightened by the presence of a former NOTW editor Andy Coulson as the Prime Minister’s director of communications, David Cameron announced the details of an independent inquiry to be led by Lord Justice Leveson, which, he told parliament, had ‘two pieces of work’ to do: ‘First: a full investigation into wrongdoing in the press and the police... Second: a review of regulation of the press.’
The Hacked Off campaign formed soon after the practice of phone-hacking was revealed and lobbied on behalf of the victims, calling for a judge-led statutory inquiry.
However, the Leveson Report that resulted went far beyond both this remit and what campaigners had initially demanded. Professor Brian Cathcart, founder of Hacked Off (which now campaigns for the implementation of the Royal Charter and statutory underpinning), made no mention of an inquiry addressing regulation, when he said on 15 July that Hacked Off’s objective was only ‘to secure a public inquiry into the [phone-hacking] scandal’. On 4 July, Cathcart wrote that an inquiry was urgently required ‘because in recent weeks there has been every sign that without one the scandal will be killed off by the year’s end. The civil litigants – the victims of hacking who have sued – are settling, one by one’.
2.2 The Leveson Inquiry’s limits
The risk of prejudicing criminal proceedings arising from Operation Weeting (phone hacking), Operation Elveden(payments to officials) and Operation Tuleta (computer hacking) meant that examination of the detail of the phone-hacking scandal was limited. Lord Justice Leveson acknowledged this when questioned at the House of Lords, saying: ‘It might be thought it was the elephant in the room, but we were able to do sufficient around the subject to know what was going on without having to deal with the issue of self- incrimination.’
The political pressure on the government to be seen to be doing something outweighed these legal constraints, and the inquiry went ahead.
As former tabloid editor Paul Connew has noted, the inquiry itself soon became the ‘hottest ticket in town’ with a whole range of lobbying and representative groups demanding to address issues that were only tangentially related to what sparked the crisis.
It is arguable that, as a result, questions that might otherwise have been viewed as incidental to the inquiry’s remit were given heightened priority. For example, the issue of the entirely legal publication of pictures of “page 3 girls” by the Sun and the Daily Star took up a full half day, in spite of the fact that there was little likelihood of Lord Justice Leveson making a recommendation on it.
At present, criminal proceedings arising from Operation Elveden have only led to the conviction of one journalist out of the 34 arrested or charged. Criminal proceedings arising from Operation Weeting have led to six convictions out of 18 charges. There are ongoing proceedings against three journalists, and 21 out of 28 public officials prosecuted have been convicted of a variety of criminal offences.
Lord Justice Leveson has told the House of Commons Culture, Media and Sport Committee that he does not know if part two of his inquiry, dealing with specific press and police wrongdoing related to telephone and computer hacking, will ever take place. This would be a surprising development, given the initial impetus for the inquiry.
Participatory blind spots
Lord Justice Leveson limited the number and nature of core participants to ensure that there was a manageable numbers of issues. It is questionable whether this selection, while seeking to be independent, was balanced and fairly represented the breadth of expertise and opinions around the complex issue of free speech in the UK.
The Leveson Inquiry’s assessors were chosen so they could create a panel that was independent of the press, rather than a panel that could independently assess regulation of the press. In hindsight this has undermined the credibility of the Leveson recommendations. For example, one of the Prime Minister’s appointed independent assessors, Sir David Bell, was chair of the Media Standards Trust. Hacked Off was originally founded as part of the Trust, only becoming independent a year later.
There also remains concern over undue influences on the inquiry’s terms of reference. Hacked Off exerted a significant influence both over the inquiry and subsequently over the legislation rushed through Parliament. As Hacked Off campaigner Hugh Grant in his introduction to Brian Cathcart's book about the project:
‘[Hacked Off] campaigned for a full public inquiry into phone hacking and thanks to the help and bravery of the Dowler family it managed to get one. It also helped to write the terms of reference.’
A number of individuals whose phones were not hacked were granted core participant status, including Max Mosley, who was closely associated to the Hacked Off agenda (although he denied being part of that group). Mr Mosley had previously failed in his attempt to persuade the European Court of Human Rights that it was a breach of his right to privacy that he was not notified before a newspaper published a story about his private life. At the Leveson Inquiry, despite his lack of legal expertise, he was given the opportunity to advocate restrictions based on arguments that the European Court had already rejected.
In contrast, some of the UK’s leading freedom of expression organisations, English PEN and Index on Censorship were not granted core participant status. It is unclear why civil society bodies and non-governmental organisations that spent an extraordinary amount of time dedicated to national and international issues of free speech and media freedom were considered of less relevance than a wealthy and polarised litigant such as Max Mosley. It is arguable that this lack of input meant the report’s findings failed to acknowledge the importance of the right to freedom of expression.
The Inquiry devoted only half a day to magazine editors, and just one day to hearing from local and regional newspapers, despite the fact local and regional titles make up 35-40 per cent of the entire newspaper industry. Evidence was only heard from the editors of the Yorkshire Post, the Irish News, the South Wales Evening Post, the Belfast Telegraph, the Manchester Evening News, the Scotsman and the Ipswich Evening Star.
Lord Justice Leveson wrote that ‘the regulatory model proposed should not provide an added burden to the regional and local press.’ However, this ambition was not reflected in his recommendations or in the subsequent debate. Coventry University’s Paul Marsden has commented that ‘legislating against local titles is akin to punishing every corner shop in Britain for the misbehaviour of Tesco’.
Local and regional newspapers benefited from the PCC’s voluntary regulation and dispute resolution. The costs and exemplary damages regime proposed by Leveson (as explored in Chapter 3) could severely damage journalism whose role in scrutinising local government is under considerable financial strain.
There was also a distinct lack of evidence from newer online providers such as the Huffington Post, which now account for a large and growing proportion of news readership. This blind spot was especially marked given the pace at which online platforms are developing and the importance they have in young people’s news reading habits (see 2.7).
The Leveson recommendations (and subsequent legislation in the Crime and Courts Act explored in Chapter 3) introduced the potential of exemplary damages and punitive cost shifting against organisations that do not use arbitration provided by the state-recognised regulator. Although arbitration can be useful in some cases, it may not be appropriate in all; furthermore, forcing parties to use arbitration is contrary to article 6 ECHR (the right to a fair trial). The inquiry did not give due consideration to alternative methods of dispute resolution.
Leveson’s main rationale for arbitration was that it offered greater access to justice for potential claimants by creating a means of pursuing claims that would be cheaper than the courts. The only anticipated costs the claimant could be ordered to pay would be the arbitrator’s fees in cases where the claim was frivolous or vexatious. A claimant would not be at risk of paying the newspaper’s legal costs if his or her claim was unsuccessful.
He did not take into account alternatives. The inquiry was presented with clear evidence of other dispute resolution (ADR) mechanisms. In particular there was a lack of engagement with evidence from the Alternative Libel Project, the most recent and comprehensive study into methods for resolving libel disputes. The project considered all possible options and found that mediation, rather than arbitration, was suitable in resolving the vast majority (90%) of cases.
It is unclear how Lord Justice Leveson reached his consensus on arbitration as the particular form of ADR. The decision seems to have been reached for a combination of reasons: providing increased claimant access to justice; preventing avoidance of dispute resolution by the press; and being a useful means of providing a commercial incentive to newspapers to comply with a regulator approved under Royal Charter.
There is no assessment of the merits and demerits of different ADR mechanisms in the report. The critique of this issue merely focuses on the failures of the PCC’s mediation and complaints system and conflates fact-specific problems with the PCC and remedies for complainants, with perceived failings of mediation as a form of ADR.
The lack of consideration of all ADR options was an omission that has affected the workability and credibility of the Leveson-endorsed arbitration process, which is explored in Chapter 3.3.
2.4 Exemplary Damages
Exemplary damages in litigation are at the core of Lord Justice Leveson’s recommendations and have sparked significant debate. The threat of exemplary damages, which can be unlimited, chills free speech.
The parameters of the scheme that Leveson envisaged were broadly in line with the conclusions of the Report of the Law Commission on Aggravated, Exemplary and Restitutionary Damages which have never been adopted. These conclusions were only supported by a minority of those consulted and have been dismissed in a key textbook on the law of damages as ‘a retrograde step, with its inevitable and twin results of allowing the civil law to enter the very different domain of the criminal law and of providing windfalls for claimants which are in truth unmerited’.
Lord Justice Leveson also did not invite or receive evidence on exemplary damages and did not address the problems around the Law Commission’s unimplemented proposals. One of those problems was identified by the Supreme Court Procedure Committee which cautioned that exemplary damages would sometimes be claimed in situations where they were not strictly available in order to try to frighten defendants into settling claims.
The uncertain legal ground of the legislation on exemplary damages that arose from this recommendation is explored further in Chapter 3.
2.5 Police whistle-blowers and press contact
Lord Justice Leveson recommended restricting everyday contact between the press and police, and that the Home Office should consider restricting the grounds on which journalistic material may be withheld from the police. Increased barriers between police and the press reduce the ability of newspapers to report on public interest issues concerning crime; in addition, enabling easier police access to journalistic material makes it harder for journalists to protect their sources, which could deter individuals from speaking to them on matters of public interest.
The effect of Leveson’s recommendation that everyday contact between officers and members of the press be restricted has already become evident in, for example, certain forces’ refusal to name suspects. Contact between officers and the press is crucial in encouraging witnesses to come forward and to prevent secret arrests, which are deeply illiberal. In the high-profile case of Rolf Harris, the police refused to confirm he had been arrested. After The Sun broke the story other witnesses came forward which helped secure his conviction.
The Law Commission was heavily critical of proposals to keep the names of arrested suspects from the press, and, by extension, the public. There is a risk that Leveson’s recommendations would deter whistleblowers from airing their concerns. Minimised contact between individual officers and reporters would leave crime correspondents reliant on press officers to give “official” lines on policing issues, with potential damage to the concept of open justice, as well as to the conduct of investigations.
Schedule 1 of the Police And Criminal Evidence (PACE) Act prevents police seizing journalistic materials without first gaining a production order from a judge. There is an established body of case law such as Breen v PSNI that source protection is crucial to the right to free expression and even the right to life. In Financial Times & Others vs United Kingdom, the European Court of Human Rights recognised the importance of source protection, ruling that: ‘without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result, the vital “public watchdog” role of the press may be undermined and the ability of the press to provide accurate and reliable reporting may be adversely affected.’
The government did consult in 2014 about changing schedule 1 of PACE, but not in the way that Leveson recommended. PACE contains a provision that journalists be given notice, and have the right to make representations, when a court is considering a police application for a production order for journalistic material. The government consulted on whether to use the Deregulation Bill to remove this right from PACE, and instead allow rules regarding this to be made alongside other court rules but, after protests from the media, the government decided to retain the right in PACE itself. This protection is vital in order to maintain the public watchdog role of the press and must not be weakened.
2.6 Data Protection
The Leveson proposals on data protection suggest a significant narrowing of the exemption for journalism, art, or literature contained in Section 32 of the Data Protection Act (DPA), proposing that it should only be available when “the processing of data is necessary for publication, rather than simply being in fact undertaken with a view to publication.” This could criminalise the basic journalistic practice of gathering and considering information. Furthermore, it could jeopardise the retention of information, which may prove useful for later publication, or be used to defend the publication from a future defamation action.
In response to Lord Justice Leveson’s recommendation, the Information Commissioner’s Office published a guide to data protection for journalists in September 2014. These guidelines show only a vague understanding of the working lives of newspaper reporters, highlighting the question of whether data protection norms can be applied to journalism. For example, the suggestion that reporters should delete information they no longer need does not reflect how stories can evolve over time.
This is a pressing point as Lord Justice Leveson asked that the ICO should consider membership of ain its decisions on data protection issues.
In light of England and Wales’s new libel legislation, which better protects freedom of expression, litigants have begun looking at using the DPA to block the publication of material they do not want in the public domain. Complaints to the ICO under the DPA can result in:
- a defendant being prevented from continuing to process data in a way that is inconsistent with the DPA, the effect of which may be that journalists have to delete information held about the complainant and that could be used in future stories in the public interest (a remedy that would not be available under traditional libel proceedings)
- a claimant being allowed up to five more years to bring a defamation claim if the limitation has expired;
In addition, it may be easier to obtain an order that a defendant produce evidence (and thereby require a journalist to reveal his or her sources) under the DPA than it is in libel law, in some circumstances.
Therefore any weakening of journalistic defences in the DPA would damage all journalism, especially considering increasingly emboldened remedy-seeking litigation being brought by claimants under the act. A recent, albeit unsuccessful, example of this practice concerned the darts player, Phil Taylor, who attempted to prevent The Sun from publishing an interview with his two daughters. Taylor sought a high court injunction on the grounds that The Sun, in carrying the article, would have invaded his privacy and breached the DPA.
2.7 Online press
‘People will not assume that what they read on the internet is trustworthy or that it carries any particular assurance or accuracy’ reads Lord Justice Leveson’s report, which recommends that the new system of press regulation apply to ‘press-like services’ which ‘would also include broadcasters and internet sites which cover news or celebrity issues’. In his conclusions, Lord Justice Leveson wrote just one page on the relevance of the web, the medium through which the future of journalism will be played out. The ubiquity and reach of the internet poses fundamental questions about privacy and free expression in the modern era, yet these questions were not considered in any depth by the inquiry.
The popular UK online press is a combination of British newspaper-owned websites, broadcaster-owned websites, and American-owned websites. Some, but not all, of the first category of these bear the cost and restrictions of belonging to a regulator, while news websites in the second category do not, even though their owners belong to a statutory one. The third category have news operations in the UK but are completely free of regulation and are protected by the US First Amendment. It is difficult to see how this regulatory imbalance is sustainable and this reality was not fully explored by Leveson.
The protections given to freedom of expression in other jurisdictions may make much of the Leveson Report redundant in an era of media convergence. The US is the home to the world’s largest internet companies and, perhaps not coincidentally, has strong protections for freedom of expression under the First Amendment of the US Constitution.
The prospect of media regulation tourism is exacerbated by the facts that the majority of the Defamation Act 2013 does not apply to Scotland, and the Act does not apply in Northern Ireland at all, giving asymmetric libel laws even within the UK. Professor George Brock commented during his lecture, ‘Trauma or Catharsis’ at Gresham College, London that the managing editor of the Financial Times had joked that, should UK regulation run contrary to the paper’s interests they could, given the internet’s reach, quite easily move to New York and run the content of the UK edition from there.
Lord Justice Leveson’s parameters prevented him from exploring the impact of the internet. The failure to look internationally, or at the broader context of how the media operates were fundamental omissions for a report with such a wide remit.
The judge’s view was that the internet was an ‘ethical vacuum’ and that readers do not trust its content is at odds with research from Ofcom which has demonstrated that this year, for the first time, more people claim to access news via the web (41%) than via print (40%) and 20% of online news users access it through social media (Facebook and Twitter). This trend is set to continue as tablet and smartphone technology becomes ever more ubiquitous. The Leveson Report was wedded to an increasingly false distinction between traditional media and new media.
The failure of the Leveson Inquiry to consider the enormous challenge and opportunities that the internet poses to newspapers– the most significant technological development in journalism since the invention of the telegram – has led to conclusions which place the UK’s press at a serious disadvantage to overseas outlets which are protected by constitutional guarantees of freedom of expression.
2.8 Public Interest
The Leveson Report dismisses calls for an across-the-board public interest defence in press cases, stating: ‘There are, however, other mechanisms to ensure that the law is not brought to bear on journalists (or, indeed, on any one else) in an oppressive or unfair way.’
Leveson maintains that the wisdom of juries and the discretion of judges should be relied on. Alex Bailin QC of Matrix Chambers has suggested that this assumption ‘surely strengthens the case for such a [public interest] defence’. It is noteworthy that a number of independent reports and experts have queried the lack of a public interest defence across the legislative framework that governs the media.
The press has a ‘watchdog’ responsibility to report on matters in the public interest. From the Daily Mail’s campaign for the prosecution of the killers of Stephen Lawrence to the Daily Telegraph’s exposé of MPs’ expenses claims, British journalism at its best serves the public like no other institution. But without a public interest defence, reporters run the risk of prosecution in the course of legitimate investigations. Journalism in the public interest is expensive and time consuming. It can also be extremely risky for reporters, who may on occasion be forced to push the boundaries of the law in order to secure vital information. But journalists do not have access to public interest defences in many of the laws which affect the media, and Lord Justice Leveson rejected the idea of introducing one in statute.
Furthermore there was a lack of engagement with the important European jurisprudence in recent years, which have repeatedly upheld the public interest as an important, if not crucial, defence in media cases. For example, Axel Springer v Germany concerned the publication of photos and two articles on the prosecution on drug charges of a well-known German television actor. The German courts had granted an injunction against publication, finding that the actor’s right to protect his reputation prevailed over the public’s interest in being informed. The European Court of Human Rights found that, under the circumstances, the interference with the publisher’s Article 10 rights was not necessary in a democratic society: there was a public interest in criminal proceedings, the actor was well-known and the information had only been published after its disclosure by the prosecuting authorities. The injunction was capable of having a chilling effect and was not justified.
In failing to recognise that the public interest is not adequately protected in a number of laws, including the Official Secrets Act, Regulation of Investigatory Powers Act, Bribery Act, and the Computer Misuse Act, Lord Justice Leveson demonstrated that when faced with a divergence of opinions on freedom of expression – he accepted the status quo when it was inimical to journalistic freedoms and questioned it when it protected them.
The lack of a clear law on public interest arguably contributed to CPS mishandling of the prosecution of a number of journalists. That confusion peaked following the Court of Appeal’s decision on the definition of the common law offence of misconduct in public office, where it was held that the ‘necessary conduct was not simply a breach of duty or a breach of trust’ but ‘one where the conduct was calculated to injure the public interest.’
The former director of public prosecutions (DPP) and Liberal Democrat peer, Lord Ken Macdonald QC stated, ‘We have to give the highest regard to the importance of freedom of expression and the free exchange of ideas, and I think it is simply obvious that there are circumstances in which it can be in the public interest for journalists to pay for information.’
The recent developments in this area have caused two former DPPs to highlight public interest laws. Macdonald, DPP from 2003-08, stated: ‘It looks as though, in the charging decisions that were made in the past in the Elveden cases, not enough weight was attached to the public interest in free expression and the freedom of the press.’
This was followed by an announcement by Sir Keir Starmer QC – recently elected as an MP and a member of the Parliamentary Home Affairs Select Committee – that he backs the creation in legislation of a specific public interest defence allowing journalists an overarching defence against criminal charges. Though Sir Keir, as DPP, issued guidelines for media-related prosecutions in September 2012, he now claims the laws protecting journalists are not ‘clear and accessible enough’, and that a new law ‘governing this difficult and controversial area’ is needed. This would be a positive development, providing protection for journalists working in the public interest, and an accompanying defence in civil proceedings would provide important support for a free, independent press.