The corporate press has, in recent weeks, been heavily promoting an anti-Leveson campaign called “FreeThePress”. This is described by the News Media Association as a group of “Free speech campaigners and activists concerned about the threat to press freedom”. The website was set up by the Trotskyists-turned-libertarians of “Spiked” magazine but provides no details as to its members or supporters and appears to be financed the newspapers. “FreeThePress” has a website. Its sole content is a “template response” to the Government’s “Consultation on the Leveson Inquiry and its implementation”. It tells us that press freedom is under attack and provides a draft consultation response which is strong on inaccurate assertion and weak on evidence. A completed response does not go directly to the Government but rather to “FreeThePress” which therefore appears to be free to make any changes it wants.
This is the “FreeThePress” template consultation response with our comments in bold: My answers to your consultation questions are as follows:
Question 1: Which of the following statements do you agree with?
Answer: Option (c) Government should ask Parliament to repeal all of section 40 now
Section 40 would stifle freedom of the press in the United Kingdom. It would put an undue burden on publications which wish to remain entirely independent. They would be forced to shoulder legal costs of complainants whether or not they are found to be at fault.
* Comment: The purpose of section 40 is to provide access to justice to those members of the public or news publishers via the low-cost arbitration system of a recognised regulator. Use of an arbitration system is typically cheaper and less burdensome for both parties, so a newspaper’s choice to reject that option is not a financial decision. One effect of section 40 will be to increase (rather than decrease) press freedom by providing protection from “libel chill” for members of a recognised regulator. The choice to, as the NMA puts it, “remain entirely independent” is a choice to avoid providing access to justice and to avoid effective independent regulation in the public interest.*
This would have dire consequences for publications both large and small; making independent publications reticent about reporting important stories for fear of crippling legal costs and bankruptcy.
* Comment: This is simple scaremongering without any evidential basis. Newspapers which choose to join a recognised regulator will be protected from existing “libel chill” from wealthy claimants. Those newspapers which choose not to join would be incentivised to ensure that “important stories” are the result of responsible journalism and are thoroughly checked. If this is done there will not be any viable libel claims and the press will not face additional costs exposure (since section 40 costs penalties only apply to arguable claims. Newspapers are free to join a recognised regulator and avoid any liability to pay claimants’ costs under section 40.*
If the press is to be free, the state has no role in regulating what is published. While signing up to a regulatory body is allegedly voluntary the sanctions contained in Section 40 would constitute state coercion of the press.
* Comment: Everyone agrees that the state has no role in regulating what is published in the press. This feature is central to the Leveson system for press regulation. Under that system, regulation is carried out by a body which is wholly independent of politicians and the press. It is “audited” by a wholly independent recognition body – the PRP – which itself has no regulatory role. Unlike “Spiked” – which opposed both the Press Complaints Commissions and its equally toothless successor, IPSO – the press has long accepted the case for regulation – but it wants to avoid regulation being independent or effective. Section 40 is not “state coercion” – it is an incentive to sign up to a proper system of regulation, while protecting the victims of unregulated news publishers by providing access to justice.*
Question 2: Do you have evidence in support of your view, particularly in terms of the impacts on the press industry and claimants?
* Repealing all of section 40 now is a vital and necessary step to protect the freedom of our press and the democracy it safeguards.
* Comment: This is assertion not evidence. It is also untrue.*
* With nothing to lose, complainants are more likely to launch legal cases against publications (both large and small) based on the smallest of disagreements. These are issues that can be easily resolved by letters to the editor and/or editor corrections; timely and expensive legal procedure is not necessary.
* Comment: Section 40 only relates to legal claims – such claims cannot be based on the “smallest of disagreements” which can be resolved by letters to the editor or editor corrections. Trivial, baseless or vexatious claims will be struck out by the Courts. Section 40 costs rules will not apply. Those with proper claims for libel or invasion of privacy need access to justice which section 40 is designed to promote. There is no evidence that section 40 will increase the number of legal claims.*
* Increased levels of legal action that will be enabled by section 40 is far more likely to stifle debate in the United Kingdom. It will have drastic effects on the financial situations of small publications, forcing them – and the wider discourse they offer – to close.
* Comment: The reference to “increased levels of legal action” and its “drastic effects” is unevidenced scaremongering. *
* Newspapers are public institutions. They hold historic reputations and an ongoing source of political and social engagement. The more we have, the better.
* Comment: Newspapers are, indeed, institutions with public duties – including duties to publish information which is not misleading or inaccurate and to respect the privacy of individuals. They have considerable privileges and with those privileges come responsibilities – including the responsibility be part of a proper system of independent and effective regulation. *
* John Whittingdale, the former culture secretary, said imposing the cost penalties outlined in section 40 would result in further losses of jobs and titles in the newspaper industry.
* Comment: This is not evidence. Mr Whittingdale is the politician whose opinion is not based on any research or analysis. He is simply repeating the prejudices of the newspaper owners who want to avoid effective independent regulation and who have lobbied him and his colleagues in Government in an attempt to reverse the cross-party consensus in favour of the Leveson recommendations.*
Question 3: To what extent will full commencement incentivise publishers to join a recognised self-regulator? Please supply evidence.
Answer: Commencement of section 40 would amount to strong arming independent publishers into signing up for outside regulation by threatening them with financial ruin from complainants even if complaints are found to be spurious.
* Comment: This gives the game away: “FreeThePress” appears to accept that Section 40 will, indeed, achieve its legislative purpose – incentivising publishers to join a recognised self-regulator. This is what Parliament intended when it passed section 40. *
Question 4: Do you believe that the terms of reference of Part 2 of the Leveson Inquiry have already been covered by Part 1 and the criminal investigations?
Answer: Yes, the scope of Leveson Part 1 has already had a chilling effect on the British press, a further inquiry would compound this. Putting the entire British press on trial for the wrongdoing of a small number of journalists is unjust. Where the law has been broken by journalists, criminal investigation into the individuals involved should suffice.
* Comment: It is noteworthy that this is not an answer to the question. The complaint made by “FreeThePress” is that Leveson Part 1 had a “chilling effect” on the press – presumably meaning that it has led the press, temporarily, to avoid the worst excesses of the past and to clean up its act. There is no evidence for this. *
* Leveson 2 does not involve “putting the press on trial” but rather inquiring into the extent of unlawful and improper conduct in newspapers, the way in which the police handled investigations relating to the press, whether corrupt payments were made to the police and failures of corporate governance and management within the press. None of these matters have yet been addressed. Criminal investigations do not uncover failures in corporate governance.*
Question 5: Provide evidence
* The Press Gazette counts 67 journalists as having been arrested from 2011-2015, more than any country in the Western world in that period. The investigations costing the taxpayer £43.7 million resulted in just 8 convictions for phone hacking (Operation Weeting) and 2 convictions for paying public officials (Operation Elveden). Operation Tuleta into computer hacking returned no convictions. As such the terms of reference of Part 2 have been covered by the criminal investigations which did not find any extensive wrongdoing, despite the vast public resources devoted to them. http://www.pressgazette.co.uk/the-67-uk-journalists-arrested-andor-charged-in-the-course-of-their-jobs-since-2011/
* Comment: These criminal investigations did not cover the terms of reference of Leveson 2 but rather, the question as to the guilt or innocence of individual journalists. On many occasions those journalists defended themselves by blaming the corporate culture of their newspapers – which has yet to be investigated. More than 30 police officers and other or public officials were convicted of accepting improper payments from newspapers, but no newspaper executive has been held to account for this. *
* According to a City partner involved in Leveson Part 1, Part 2 would be “ludicrous” as re-treading the same ground as the criminal cases would undermine the verdicts http://www.legalbusiness.co.uk/index.php/lb-blog-view/8099-it-would-be-ludicrous-lawyers-react-as-government-launches-leveson-part-2
* Comment: The (anonymous) “City partner” is giving his or her uninformed personal opinion which seems to be expressed in ignorance of the terms of reference of Leveson 2 and the nature of the criminal investigations, and the difference between a public inquiry and criminal trial. *
* In the wake of Leveson Part 1 the World Association of Newspapers and News Publishers (WAN-IFRA) wrote a report expressing concern at the state of UK media freedom. They criticised the conflation of the hacking scandal investigated by Leveson Part 1 with debate over regulation, stressing that “British law provides appropriate remedy for illegal activity in proven cases of wrongdoing.” Launching Part 2 of the Leveson Enquiry is an unnecessary infringement on the independent role of the law in convicting those – in this particular case, journalist’s – of any wrongdoing they are accused of committing.
* Comment: WAN-IFRA is a media industry body whose executive committee includes as the representative of the British press the CEO of the Daily Mail Group, Kevin Beatty. Its opinions are not independent. Its view on “British law” (meaning, presumably, “English law”) are not to be preferred to those of Lord Justice Leveson who thought the opposite and explained why in considerable detail in his report.*
Question 6: Which of the two options set out below best represents your views?
Answer: Terminate the Inquiry
The Leveson Inquiry has already damaged the freedom of the press in Britain. In the Reporters Without Borders World Press Freedom Index, the United Kingdom has fallen 19 places since 2010 – we are now ranked below Tonga, Belize and Lithuania.
* Comment: This is utter nonsense. The reasons given by Reporters without Borders for the fall in the UK’s ranking in 2016 all concerned draconian security legislation and the threat to journalist’s sources. They had nothing to do with the outcome of Leveson 1 or the prospect of Leveson 2. In 2014, the organisation highlighted the disgraceful pressure put on the Guardian newspaper over the Snowden leaks. The corporate press supported the Government on this issue. In 2012, it cited among other things the attitude of the police to the London riots and the fact that News Corp disclosed confidential journalistic sources to the police. The country which consistently tops the Reporters without Borders table, Finland, has a statutory framework for the exercise of freedom of expression by the media.*
* It is unusual to find journalists opposing a public inquiry designed to discover the truth about corporate and police malpractice. The fact that FreeThePress takes this position tells you all you need to know about them.*
The Government should not need a consultation if it is serious about upholding the freedom of the press. For centuries Britain has had a free press, unregulated and unstifled by legislation or Royal Charter. Section 40 of the Crime and Courts Act 2013 presents a serious threat to that proud record.
* This is an extraordinary and extremely telling admission. For years the press has claimed that their system of self-regulation” by the PCC is adequate, and they now describe PCC’s successor, IPSO, as “the toughest regulator in the western word”. In this “Postscript” FreeThePress makes it clear that IPSO does not amount to regulation and that it wants to maintain an unregulated press. This is the press which has the lowest level of public trust in Europe and has, for many years been mired in crisis and scandal: from the treatment of Princess Diana to the vast criminal phone hacking conspiracy. *
The impact section 40 could have on smaller publications could be particularly dire. The financial pressure that could be placed on local newspapers would lead to them being strong armed into joining the government selected regulator, or impose a chilling effect on their journalism. That would not be healthy for democracy, and a huge back step for Britain.
* There is no evidence for any of these outcomes, and plenty of evidence that doing nothing will allow the bullying and unethical conduct of many part so of the British press to continue. A recognised regulator is obviously not “government selected”. The Government has no role in establishing a regulator, nor in its recognition. *
Going through with Leveson Part 2 would be a waste of taxpayer’s money, and present barriers to investigative journalism. If the Government is interested in what is best for its citizens, not just itself, it will ignore calls for obstructions to public service journalism.
* Leveson 2 would investigate corporate wrongdoing and police corruption – both of which are the staples of investigative journalism. It was investigative journalism which brought to light the scandal that Leveson Part 2 would get the truth about.*
The Government should not commence with section 40 or consider starting Leveson Part 2 if it is on the side of freedom. The only sensible response to this consultation, would be to bin Leveson and scrap section 40.
* This letter is nothing to do with “freedom” and everything to do vested corporate interests in covering up wrongdoing.*