The current state of play post-publication of the Leveson Report can only be described as an unsatisfactory stalemate. When Lord Justice Leveson published his recommendation that newspapers should operate a system of independent self-regulation, he surely cannot have envisaged the political turmoil, in-fighting and secret backdoor deals that have resulted. So much for one of the key themes of his report – transparency.
The new press regulator was viewed as a three-pronged body – operating a complaints process, a sanctions arm, and an arbitration arm. In order to provide incentives to join the new system, there were two main sticks: making exemplary (punitive) damages available against newspapers that declined to join the new regulator, and a costs regime that penalised those who declined to use the arbitration scheme when they could have done.
So where have we got to?
In the week before Easter, not only the Defamation Bill but also the whole government legislative programme was under threat as Leveson amendments sprung up in a number of key bills. It was only after late-night talks with representatives from Hacked Off, that politicians from all parties jointly agreed to use a Royal Charter, thereby putting their toes in the shallow waters of the Rubicon and cast the statutory dice. There are a number of spanners currently being thrown in the Royal Charter’s works, not least the one with ‘bloggers’ written on it. In an attempt to capture newspaper websites as well as their print operations, the definition of publisher has been cast very widely, although curiously not so wide as to catch the unregulated websites of the broadcasters.
The device of the Royal Charter has caused a split in the newspaper industry, with some saying they would never join a regulator of any hue, others saying they will consider going it alone, and others still waiting to see what the charter process brings. None of this bodes well for the creation of a modern, quick, easy-to-use system of complaint and resolution that is easily accessible to the wider public (as opposed to celebrities and politicians who still tend to address their letters of complaint directly to the editor).
In the meantime, the current Press Complaints Commission is in a transitional stage, still operating much as it used to. Fed up of waiting for the politicians, the chairman of the PCC, Lord Hunt, announced in early March that the former Supreme Court judge Lord Phillips of Matravers would set up a six-strong foundation group to sort out an appointments panel to make the initial appointments to the new press board. This process is intended to proceed irrespective of what comes out of the Royal Charter route. Some members of the industry may engage with this process. An arbitration scheme, while sounding good on paper, is also proving problematic. A major fear is that the availability of a quick, free scheme with power to award compensation is going to encourage every Tom, Dick and Harry to see if they can get something out of it.
And what of those incentives? The potential to impose exemplary damages in media torts, even where the regulator has already punished a newspaper, poses a serious threat to free speech, even if a very high level of misconduct will have to be proved before such a penalty can be imposed. The Joint Opinion commissioned by the industry from Lord Pannick QC, Antony White QC and Desmond Browne QC was that the proposal to extend exemplary damages to a small group of news publishers probably breaches article 10 of the European Convention on Human Rights. What is particularly objectionable is that this singles out for punishment a particular category of defendant, rather than a particular kind of conduct: to punish the press for what others may do without punishment is inconsistent with the special importance that both domestic and Strasbourg jurisprudence attaches to freedom of the press.
The new clause dealing with costs is also worrying. The advice here is that these provisions are probably not compatible with either article 6 or article 10, because they will effectively compel parties to arbitrate their civil claims and thus deprive them of access to the courts.
Among other matters of concern to those in the free speech lobby post-Leveson are the proposal to force the press to apologise – what is the sense in that if the apology is not meant? – and the proposed changes to PACE and the Data Protection Act, which would have the effect of significantly narrowing the journalistic exemptions in both those areas. So as an industry we find ourselves firefighting on many levels, with the prospect of years of stalemate that can only be resolved in the courts.
Gill Phillips is chair of the Media Lawyers Association and director of editorial legal services for Guardian News and Media