by Hugh Tomlinson QC
One of the possibilities being considered by Lord Justice Leveson as he writes the Report for Part 1 of his Inquiry is whether there should be compulsory regulation of the print media. One widely discussed possibility is a statutory framework which would require any publisher with turnover or readership above a set threshold to join a “regulatory body”: compulsory regulation for large publishers.
The purpose of such a provision would be to deal with the so-called “Desmond problem” – the anomaly of a system of regulation which does not cover all the large newspaper publishers. But an important freedom of expression question arises: is the compulsory regulation of the print media compatible with Article 10 of the European Convention? This is not a question which has ever been considered by the Court of Human Rights and the answer may not be an entirely straightforward.
Council of Europe and Self-Regulation
The Council of Europe has, for many years, promoted the idea of self-regulation of the media. Over the years, the virtues of media self-regulation, and the vices of regulation by the State, have been discussed in many seminars and recommendations. For example, in the Explanatory Memorandum to “Recommendation (2001) 8 on self-regulation concerning cyber content” the Committee of Ministers noted that
“self-regulation has become an important and recognised mechanism for the media in avoiding restrictive State legislation on the dissemination of information through the media, especially on matters of decency and moral values which differ widely among individuals and States, while ensuring respect of certain standards, some actors of the new communications and information services have taken initiatives for the creation of their own self-regulatory mechanisms”.
More recently, in a discussion paper on “Ethical journalism and human rights” the Council of Europe’s Commissioner for Human Rights, Thomas Hammarberg, argued that
“Reworking notions of media accountability invites a new vision of media regulation, one which goes beyond bureaucratic frameworks for policing journalism, and which encourages self-regulation as a positive force for setting high standards and defending them. This may be achieved by adapting existing press councils or state media commissions, but less complex forms of peer review will continue, such as the use of readers’ editors or ombudsmen, or through professional journals and the systematic monitoring and reporting on media by non-governmental organisations and human rights bodies. New systems may benefit from legal guarantees, but unless they are cast in the mould of self-rule and provide an independent voice for civil society, they will constantly face the danger of undue political or corporate influence”.
In a November 2011 comment, he said that self-regulation “protects the independence of the media”.
Court of Human Rights
But this is not an issue which has ever been directly considered in the case law of the Court of Human Rights. The Court has never analysed the issue of “self-regulation” versus “state regulation” from the point of view of Article 10.
The basic position seems clear. First, a system of compulsory media regulation is a prima facie interference with the right to freedom of expression and must, therefore, be justified under Article 10(2). Second, such a system would, if enacted by statute, plainly be in accordance with law and would serve a legitimate aim (for example, the protection of the rights of others). As a result, third, the crucial question would, therefore, be whether the system was “necessary in a democratic society” – whether it was proportionate to the legitimate aim pursued.
Nevertheless, there are two general arguments can be advanced in favour of the proposition that no form of compulsory regulation could ever be justified under Article 10(2).
Terms of Article 10(1)
The first argument derives from the wording of Article 10 itself. Article 10(1) – the provision which provides for the right to freedom of expression – provides that:
“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.”
The third sentence appears to contemplate the licensing of broadcasters and cinemas but not of the print media. It could, therefore, be argued that Article 10 appears to be drafted on the basis that print media “licensing” was unacceptable and that compulsory regulation was, in substance, a form of licensing.
However, this interpretation does not appear to be consistent with the purpose of the third sentence of Article 10(1). The position was explained in the Groppera Radio AG v Switzerland (1990) 12 EHRR 321
“The Court observes that Article 19 of the 1966 International Covenant on Civil and Political Rights does not include a provision corresponding to the third sentence of Article 10 § 1 (art. 10-1). The negotiating history of Article 19 shows that the inclusion of such a provision in that Article had been proposed with a view to the licensing not of the information imparted but rather of the technical means of broadcasting in order to prevent chaos in the use of frequencies. However, its inclusion was opposed on the ground that it might be utilised to hamper free expression, and it was decided that such a provision was not necessary because licensing in the sense intended was deemed to be covered by the reference to “public order” in paragraph 3 of the Article (see Document A/5000 of the sixteenth session of the United Nations General Assembly, 5 December 1961, paragraph 23).
This supports the conclusion that the purpose of the third sentence of Article 10 § 1 (art. 10-1) of the Convention is to make it clear that States are permitted to control by a licensing system the way in which broadcasting is organised in their territories, particularly in its technical aspects. It does not, however, provide that licensing measures shall not otherwise be subject to the requirements of paragraph 2 (art. 10-2), for that would lead to a result contrary to the object and purpose of Article 10 (art. 10) taken as a whole. 
As a result the wording of Article 10(1) casts no light on the general acceptability of compulsory media regulation under Article 10.
Compulsory Registration of Journalists
The second argument derives the international human rights case law concerning compulsory registration of journalists. The leading case is the Advisory Opinion of the Inter-American Court of Human Rights in The Compulsory Membership in An Association Prescribed by Law for the Practice of Journalism) (Advisory Opinion, OC-5/85 of November 13, 1985). In that case it was held a requirement that journalists are members of a “College of Journalists” is an unjustified interference with the right to freedom of expression. The Court contrasted the position of journalists with that of doctors and lawyers saying that
“Unlike journalism, the practice of the law or medicine… is not an activity specifically guaranteed by the Convention”
The Court concluded that
“reasons of public order that may be valid to justify compulsory licensing of other professions cannot be invoked in the case of journalism because they would have the effect of permanently depriving those who are not members of the right to make full use of the [right of freedom of expression]”. 
The same approach was taken by the African Commission on Human and People’s Rights in the case of Scanlen and Holderness v Zimbabwe (297/05, Decision of 3 April 2009). It was held that, although registration procedures for journalists were not a violation of the right to freedom of expression these should not be a matter for the State:
“The regulation of the media should be a matter for self-regulation by journalists themselves through their professional organisations or associations” 
In short, the international human rights jurisprudence makes it clear that any requirement which made the practice of journalism dependent on statutory licensing would be a violation of the right to freedom of expression. This is not, however, determinative of the issue as to whether compulsory regulation of the print media would be a violation.
Arguments in favour of compatibility
A number of arguments can be advanced in favour of compulsory media regulation being compatible with Article 10 in an appropriate case.
First, there is some support in the Court’s case law for a positive obligation to engage in appropriate media regulation. The Court of Human Rights has emphasised on many occasions over recent years that the Article 10 right to freedom of expression needs to be balanced with the Article 8 right to reputation. This led the Grand Chamber to say that
“the Contracting States are permitted, or even obliged, by their positive obligations under Article 8 of the Convention … to regulate the exercise of freedom of expression so as to ensure adequate protection by law of individuals’ reputations, they must not do so in a manner that unduly deters the media from fulfilling their role of alerting the public to apparent or suspected misuse of public power” Cumpănă and Mazăre v. Romania (2005) 41 EHRR 4 (GC), 
The Grand Chamber went on to emphasise that investigative journalists should not be inhibited from reporting on matters of general public interest by the risk of imprisonment or prohibition on the exercise of their profession. No system of compulsory regulation contemplated by the Leveson Inquiry would conceivably involve sanctions of this kind.
Second, it could be argued that the compulsory regulation of large publishers is fundamentally different from the licensing of journalists. The latter means that it is not permissible to write for the media without being a member of a state approved body. The former means that some, but not all, publishers must obey certain basic rules if they are to be permitted to publish.
Third, it is well established that compulsory regulation of the broadcast media and of advertising is acceptable under Article 10, provided that it is necessary and proportionate. There is no difference in principle between compulsory regulation in these areas and compulsory regulation of the print media. The question is whether the requirements of Article 10(2) are satisfied.
Finally, the question as to whether a particular interference with a Convention right is justified is “fact specific”: it is necessary to look at the precise feature of the scheme proposed. The nature of the regulator and the code which it applied would be relevant factors in the proportionality exercise, as would be the extent of the application of the compulsory regime. The Court would also take into account the “mischief” that the regulatory system was intended to deal with. A system of compulsory regulation for large publishers recommended by the Leveson Inquiry would be designed to deal with the “mischief” of wholesale invasion of rights identified by the Inquiry. If a regulator was independent of all government influence and applied a Code drawn up with substantial input from the media and journalists these would all be factors which the Court would take into account in the “justification exercise”.
In summary, although the Council of Europe has strongly promoted self-regulation it is likely that compulsory regulation of the print media will not, of itself, be incompatible with the requirements of Article 10. Compatibility will depend on the precise form of compulsory regulation which is proposed and the justifications for it. Any compulsory scheme proposed by Lord Justice Leveson is likely to be carefully tailored to deal with the unique problems of the British print media. It is likely that care will be taken to ensure that investigative journalism is not inhibited and with compulsion being confined to large and powerful publishers. In these circumstances, provided that a compulsory regulatory system remains fully independent of government, it seems likely that they it would be held to be compatible with Article 10. The European Convention on Rights will not tie Lord Justice Leveson’s hands.
Hugh Tomlinson QC is a founder member of Matrix Chambers and a member of the Inforrm Editorial board.