Leveson and Legality: Implementation of the Report would not be ‘illegal’

by Hugh Tomlinson QC

According to the “Mail on Sunday” the Leveson assessor and Liberty Director Shami Chakrabarti has “delivered the bombshell verdict that his demand for compulsory press regulation would be illegal”. The BBC has, in turn, reported the story under the headline “Leveson report proposals ‘would be illegal‘”. This is distortion of Ms Chakrabarti’s views which, as is clear from the report, relate to matters which do not form part of its recommendations. In any event, Ms Chakrabarti’s analysis is wrong in law. The suggestions made in the report to which she refers are lawful and in no way inconsistent with the Human Rights Act 1998.

It is first necessary to look at what Ms Chakrabarti actually said. The “Mail on Sunday” quotes her as saying

In a democracy, regulation of the press and imposing standards on it must be voluntary. A compulsory statute to regulate media ethics in the way the report suggests would violate the Act, and I cannot support it. It would mean the press was being coerced in being held to higher standards than anyone else, and this would be unlawful.

This does not relate to the recommendations concerning “recognition” of an independent voluntary regulator by Ofcom or some other system established by statute. Ms Chakrabarti’s views on this are set out in the Report in a footnote to the recommendation that Ofcom be the recognition body:

Shami Chakrabarti has advised that she prefers this role to be fulfilled by the court but I do not see how the court, of its own motion, could adopt an adjudicative role in relation to certification or subsequent review. Somebody would have to be prepared to challenge either the extent to which the new body fulfilled the requirements of the legislation or the proposition that it should continue to do so. If that was Ofcom, and Ofcom raised no objection, there would be nothing upon which the court could adjudicate. Thus, the decision would become whether Ofcom was satisfied. A very similar role would be available to the court if there was an appeal from an adverse decision of Ofcom (which could allow a merits challenge rather than be limited to the more restrictive justification for intervention that is provided by judicial review (fn 56, p.1775)

In other words, Ms Chakrabarti does not suggest that the implementation of any Leveson recommendations would be illegal. Although she disagrees with the proposal for recognition by Ofcom, she does not argue that this would be in any way incompatible with the Human Rights Act 1998. And she is obviously right not to make such a claim. Any argument that the implementation of the modest proposals in the Leveson Report would be illegal is plain wrong.

So what was Ms Chakrabarti talking about? Her comments in the “Mail on Sunday” in fact relate to a different point which do not form part of the Leveson recommendations at all. They relate to the discussion in Part K, Chapter 8 of the Report – entitled “The Alternatives” – in which Lord Justice Leveson considers what would happen if the press

fails to deliver the independent regulation that is required and that the public have a right to demand. If, however, the industry were unwilling, or unable, to come forward with a credible proposal for independent regulation then it would have demonstrated sufficient disregard for the public interest to have established that self-organised regulation simply is not an effective option.

In this Chapter – which deliberately includes no recommendations – he sets out his views on what a “backstop regulator” would look like. Ms Chakrabarti’s views are made clear in the Report which, after recording that Elinor Goodman and George Jones advised that it was not necessary for him to make a recommendation about what should be done if the press did not accept the preferred option (advice which he appears to have accepted), states

I also record that Shami Chakrabarti advised against the contemplation of any element of compulsory backstop standards regulation of the press in the event of the inability or unwillingness of the press to implement the recommendations in this Chapter; she would prefer in that event to see a strengthening of the financial assistance available to those who feel their rights have been abused by the press in order to help them defend those rights in court (Fn44, p.1758.)

So, Ms Chakrabarti’s point appears to be a narrow one: that if the press failed to accept the report’s preferred option of an independent voluntary self regulatory body and compulsory regulation was imposed by statute this would be incompatible with the Human Rights Act 1998. The basis for this opinion is not explained and I believe that it is also wrong.

The report quotes my evidence to the Inquiry that regulation of the print media could, in some circumstances be compatible with the ECHR, particularly if limited, for example, to a set of mandatory standards for publications with a large circulation, but that general regulation which might amount to a licensing regime would not (pp.1655-1656). I have analysed the legal arguments in more detail in a previous post on Inforrm. My conclusion was

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.

Article 10(2) of the ECHR reminds us that the exercise of freedom of expression

since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, … for the protection of the reputation or rights of others

There is no case law of the Court of Human Rights which suggests that this prevents the statutory regulation of press standards. After all, broadcasters (who, like the press, exercise the right to freedom of expression) are subject to statutory regulation across Europe. None of the press regulation regimes in other Council of Europe countries have been declared incompatible with Article 10 on the basis that “press standards must be voluntary”. This is not a requirement of the Convention.

Ms Chakrabarti is quoted as saying, of Hacked Off – of which I am the Chair

I understand that people who have been wronged want action. But they should be interested in outcomes, rather than particular processes. The outcome they should be seeking is a free and vibrant press with access to justice for the public when things go wrong. We can achieve this without legislation, which may have serious unintended consequences. Unfortunately, there has been a great deal of ill-informed debate, with people bandying about terms such as “statutory underpinning” with little grasp of what this would mean.

Hacked Off is certainly interested in outcomes rather than particular processes and we are interested in a free and vibrant press with access to justice where things go wrong. We part company, however, on the need for legislation. For over sixty years the press has promised to “put its house in order” but, as the Leveson Report makes clear, has only ever done anything when threatened with statutory intervention.

The suggestion that legislation “may have serious unintended consequences” does not bear serious examination. This is the idea that there is a “slippery slope” leading to state control of the press. As I said in a previous post on this blog:

The problem is that there is no evidence to support it. No one ever gives concrete examples from history to show how regulation has led inexorably to control. And history is entirely against it. Judges, lawyers and of course broadcaster are subject to statutory regulation but there is no “slippery slope” showing increasing state control over judicial decisions or the content of ITN news broadcasts.

Ms Chakrabarti is right. There has been a great deal of ill-informed debate – it is be found in the pages of the British press who have, over the last few months, debased even their own low standards of analysis and objectivity and have presented the public with a wholly distorted and one-sided account of the debate. Statutory underpinning does not equal state control of the press. Like any other group in our society, the press must be held to proper standards in the public interest. The Leveson recommendations are a minimum programme for seeking to achieve this.

Hugh Tomlinson is the Chairman of Hacked Off.

5 Responses to “Leveson and Legality: Implementation of the Report would not be ‘illegal’”

  1. Bruce

    Thank you for putting Ms Chakrabarti’s ‘verdict’ in its proper context. I can’t see however how regulation of press standards contravenes Article 10 or any other Article in the ECHR, The Human Rights Act 1998 or the original Universal Declaration of Human Rights. All of these pronouncements enshrine the rights and freedoms of the individual, whilst restricting the acts or omissions of the public authorities. As The Press comprises of corporate bodies I can see no Article that would apply to them nor support Ms Chakrabarti’s view. While individual journalists might have some protection under the ECHR that protection cannot be extended to a newspaper corporation.

    Interestingly The Protection of Freedoms Act 2012 created two new offences of stalking by inserting new sections 2A and 4A into the Protection from Harrassment Act 1997. The two offences came into force on 25 November 2012 and provide further options for prosecutors to consider when selecting charges.

    Whilst there is no strict legal definition of ‘stalking’, section 2A (3) of the PHA 1997 sets out examples of acts or omissions which, in particular circumstances, are ones associated with stalking. These include: physical following; contacting, or attempting to contact a person by any means; monitoring the use by a person of the internet, email or any other form of electronic communication, or other intrusions into the victim’s privacy such as loitering in a particular place or watching or spying on a person.

    According to the CPS website “The effect of such behaviour is to curtail a victim’s freedom, leaving them feeling that they constantly have to be careful. In many cases, the conduct might appear innocent (if it were to be taken in isolation), but when carried out repeatedly so as to amount to a course of conduct, it may then cause significant alarm, harassment or distress to the victim.”

    I am sure it will not be long before a victim of press intrusion makes a complaint to the Police about an individual journalist loitering about outside their home, work, or hotel, or about a photographer spying on them from a distance using a powerful camera.

    Maybe it will only be when individual members of the press start getting jailed for stalking their victims will their body corporates start acting in a professional and dignified manner

    Reply
  2. mark renaud

    It took 90 ‘Post Leveson’ minutes for Cameron to demonstrate where his loyalties really lie. It took a day or two for MPs of various parties to express “doubts” and on the first ‘Post Leveson’ Sunday the press are proving once more that they need regulation at least as strict as Leveson proposed. They are distorting the facts (lying), misquoting Ms Chakrabarti (lying), wrongly alleging that Lord Leveson recommended something illegal (lying) and so forth.
    Over a hundred thousand members of the public signed the Hacked Off petition in the first 48 hours after it was launched and the number is still rising. We the public need to oust from their ‘safe’ seats those who bow to media pressure and cave in to demands that the press be allowed to carry on misbehaving like an MP with their hand in the the expenses drawer. Sadly many of our MPs are still sitting after being exposed as being dishonest. We cannot expect MPs who steal from us to be any less self serving when it comes to public interest versus their own interests.
    What will it take to yank them back into line? Do we have to turn Trafalgar Square into our Tahrir or Tiananmen Square? Will 250k, 500k or a million signatures to the petition affect the loyalties of those who are close friends with media barons and editors?
    In the last eight general elections I have voted Tory but I have informed my MP and the Conservative Party that I am very unlikely to vote for them in 2015.

    Reply
  3. The Press is muddying the waters - Shami is in support of legislation

    I watched Shami on The Andrew Marr show yesterday morning and listened again to her on the Today programme this morning and she made it VERY clear that she supported Lord Leveson’s recommendations including the statutory underpinning of the voluntary regulation. The only area where she differs from Leveson is who should have the role of checking that the voluntary regulation is working – OFCOM or some other body.
    I was also disappointed that John Humphries was trying to make it look like Charles Falconer and Shami had different views and that Shami was against any legislation when in fact they were basically both saying they were for the recommendations.
    It is clear that the press is trying to muddy the waters and confuse us (and possibly politicians) into thinking that having some statute is bad.
    We need the legislation Lord Leveson recommends and the only discussion in parliament should be about how it is ‘recognised/approved’ effectively. It is important that Hacked Off and the other interested parties get the discussion onto this aspect.

    Reply
  4. Tony

    Most of the Newspapers who are foaming at the mouth about the possible introduction of limited statutory Press regulation are already members of statutory Press Regulation in the Republic of Ireland and never complain – ( The Press Council of Ireland ). The Sun and The Daily Mail are Regulated by Statute in the Republic of Ireland and never complain about government control or freedom of the press.The Press Council of Ireland is a working model for Britain. All of the Irish editions of the Murdoch Papers, the Daily Mirror and the Irish Daily Mail are big supporters of the Irish system in Ireland but they hide this from the British public. It works fine and both Press and public are happy with it. No one wants to ” muzzle the press”. People just want the tabloid press to stop breaking the law and targeting innocent people as the News of the World did. If a story is in the public interest, it must be published.

    The establishment of the Press Council of Ireland on January 1 2008 was one of the most positive developments in the history of Ireland’s newspapers and magazines. http://www.pressombudsman.ie/about-the-press-council.77.html Press Council of Ireland and Office of the Press Ombudsman, Westmoreland Street, Dublin 2, Ireland.

    The objectives of the Press Council are:

    To provide the public with an independent forum for resolving complaints about the press.
    To resolve all complaints quickly, fairly and free of charge.
    To defend the freedom of the press and the freedom of the public to be informed.
    Independent press regulation is the most objective, credible and transparent form of press regulation. Both the Press Council and the Press Ombudsman are independent of government and, in operation, independent of the media. Independent press regulation works best because it operates with the cooperation of newspaper and magazine editors and journalists. By signing up to the Code of Practice, editors and journalists are promising to adhere to those journalistic principles.

    Members of the Press Council :
    The Press Council has 13 members. Seven of these, including the Chairman, are drawn from suitably qualified persons representative of a broad spectrum of Irish society. The remaining six members of the Press Council provide senior editorial and journalistic expertise and perspectives reflective of the press industry.

    What happened before now?

    Before now, if you had a complaint against the press you had two options.

    You could go directly to the publication concerned and ask the editor for an apology. (Our old libel regime, however, meant that editors were often afraid to apologise.) Or you could take a libel action and go to court – a very expensive option, usually only for the wealthy or well-connected. The libel regime has now been changed by the enactment of the Defamation Act 2009, which not only makes it possible for publications to apologise in certain circumstances, but which formally recognises the important role played by the Press Council and the Office of the Press Ombudsman.

    Now, with the establishment of the Office of the Press Ombudsman and the Press Council of Ireland, everyone in Ireland has access to an independent press complaints mechanism that is quick, fair and free. This is one of the most positive developments in the history of Ireland’s newspaper and magazine industry.

    The new complaints mechanism is designed to ensure that the freedom of the press is never abused, and that the public interest is always served. These are the main principles of independent press regulation all around the world.

    How does it work?

    Press regulation gives people an opportunity to complain to the Office of the Press Ombudsman if they feel that a newspaper or magazine has breached the Code of Practice. The service is free, it’s designed to resolve complaints quickly, and because the system is independent, its decisions are always fair. This means it’s good for the public… and good for the press.

    Why should it be independent?

    Independent press regulation is the most objective, credible and transparent form of press regulation. Both the Office of the Press Ombudsman and the Press Council of Ireland are independent of government and, in operation, independent of media. Independent press regulation works best because it relies on the voluntary commitment of newspaper and periodical editors and journalists: by signing up to the Code of Practice, they are promising to adhere to those journalistic principles.

    An independent regulator with statutory backing, based on the system currently in place in the Republic of Ireland.

    An Irish-style press council is favoured by the National Union of Journalists (NUJ), according to the organisation’s general secretary Michelle Stanistreet, who says regulation needs to be underpinned by a statute creating a body with clear terms of reference.

    Ireland’s system of press regulation was established in 2008 following years of debate over the country’s difficult libel regime and plans to introduce tough privacy laws. The compromise was an independent press council and ombudsman tasked with safeguarding professional and ethical standards in print journalism.

    How it works :
    The ombudsman enjoys statutory recognition and is tasked with taking complaints from members of the public and conciliating grievances to the satisfaction of all parties; where conciliation is not possible the ombudsman will make a ruling.

    The press council is independent of the government and media, tasked with overseeing the code of practice for newspapers and magazines, and decides on appeals from the press ombudsman.

    The council has 13 members; seven, including the chairman, are drawn from a “broad spectrum of Irish society”, consisting of lawyers and academics. The remaining six represent the print industry, newspaper editors and the NUJ.

    The code of practice enforced by the ombudsman aims to ensure reporting is true and accurate, comment is distinguished from fact and guarantees fairness, respect for rights and privacy. But while the ombudsman enforces privacy it also allows for people holding public office or seeking publicity to have their private lives probed where it is in the public interest.

    Like the current PCC system Irish newspapers are not legally obliged to be regulated by the council, but publications that opt out face difficulties handling legal complaints. In April 2010 the press council was formally recognised under section 44 of the Defamation Act 2009, for the introduction of a fair and reasonable publication defence. Judges can now take into account co-operation with the council.

    They have no power to initiate their own inquiry or even to examine or report on patterns of press misbehaviour
    Noel Whelan, political commentator
    Professor John Horgan, the current press ombudsman, is a former Labour politician who served in the Senate and the Dáil (Irish parliament) before becoming a professor of journalism at Dublin City University.

    Mr Horgan told the Leveson inquiry that independence from the press, government and executive powers is vital for any regulator. He explained that every major newspaper in Ireland has been the subject of “critical adverse findings in one form or another” by his office.

    “The sanction that we operate, which is the requirement to publish in certain modalities any decision upholding a complaint against them, is taken extremely seriously by the editors of all our publications.

    “The public may not see it as seriously as they do, but in my experience, editors take it extremely seriously and would take considerable steps to avoid finding themselves in that situation.”

    However, not everyone agrees about the efficiency of the model. Irish Times political commentator Noel Whelan has recently claimed the press council is dominated by the industry and does not work.

    Writing in the Irish Times he highlighted problems with journalists intruding on bereaved families: “The Ombudsman and council are neutered because they can only act when victims themselves complain.

    “They have no power to initiate their own inquiry or even to examine or report on patterns of press misbehaviour.”

    Following the publication of topless pictures of Kate Middleton in the Irish Daily Star, Justice Minister Alan Shatter is now considering revisiting the planned 2006 Privacy Bill.

    The threat of a privacy bill was first introduced by then Justice Minister Michael McDowell, of the now defunct Progressive Democrats. The prospect of privacy legislation and state regulation was enough to convince most editors to agree to an ombudsman solution.

    Structures and Funding
    The Press Council of Ireland and the Office of the Press Ombudsman have been established under the Companies Acts 1963 to 2006, and in accordance with the Memorandum and Articles of Association of the Press Council, as an independent regulatory body to consider, investigate, adjudicate, and resolve or settle complaints received from the public of unjust or unfair treatment or unwarranted infringements by Irish newspapers, periodicals or magazines of the Code of Practice for Newspapers and Magazines.

    In their operations, policies, and in their application of the Principles of the Code of Practice, the Press Council and the Office of the Press Ombudsman are independent both of the press industry and of government.

    The finances of the Press Council and of the Office of the Press Ombudsman, including funding, premises, and staffing, are provided, under the terms of the Articles of Association, by the Administrative Committee of the Press Council, which is chaired by an independent member of the Council.

    Each member title of the Press Council sold in the country is levied by the Administrative Committee in accordance with its circulation to meet the funding requirements of the Press Council and the Office of the Press Ombudsman.

    The Administrative Committee includes representatives of National Newspapers of Ireland, Regional Newspapers and Printers Association of Ireland, Magazines Ireland, and the National Union of Journalists. Its current members (2012) are: Seamus Boland (Chairman), Seamus Dooley, Oliver Keenaghan, Johnny O’Hanlon, Grace Aungier, and Frank Cullen.

    Further details of the finances of the Press Council and the Office of the Press Ombudsman are available in the Annual Report of the Press Council and the Office of the Press Ombudsman published each year,

    Members of the statutory Irish Press Council

    National Newspapers

    Daily Publications

    Evening Herald
    Irish Daily Mail
    Irish Daily Mirror
    Irish Daily Star
    Irish Examiner
    Irish Independent
    Irish Sun
    The Irish Times

    Weekly Publications

    Sunday Business Post
    Sunday Independent
    Sunday Times
    Sunday World
    Irish Mail on Sunday
    Irish Sunday Mirror
    Irish Farmers Journal

    Reply
  5. Steve Higgins

    Excellent. Law making by victims and petitions. Just what the country needs. Perhaps I am unduly cynical in that all those signing the petition have read and digested the report.

    Reply

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