Leveson anticipated that enemies of change would wrongly characterise his plan as ‘statutory regulation’:
“Despite what will be said about these recommendations by those who oppose them, this is not, and cannot be characterised as, statutory regulation of the press. What is proposed here is independent regulation of the press organised by the press, with a statutory verification process to ensure that the required levels of independence and effectiveness are met…”
The statutory ‘recognition body’ would have no direct relationship with the national press. Nor would it pass judgement on what appeared in the press in any way. Its sole function would be to ensure that the self-regulator established by the press was not another Press Complaints Commission but instead conformed to basic standards for an effective regulator. This, the judge concluded, was the best way to serve both society’s need for a free press and the public interest of a responsible press which could put the malpractices of the past behind it.
What were Lord Justice Leveson’s recommendations on press regulation?
- The press should have yet another chance to establish an effective self-regulatory body.
- This self-regulator should have a leadership that is not controlled by editors and proprietors, should have powers of investigation and enforcement, and should have the ability to deal properly with complaints.
- There should be strong incentives for newspapers to join, notably in the form of financial benefits for members that find themselves in court and penalties for non-members.
Based on seventy years of experience, however, Lord Justice Leveson decided that the industry could not be trusted to set up and run such a self-regulator in a way that would give sufficient protection to the public. There was too much danger that such a body, like its predecessors, would put the interests of newspapers before those of the rest of us. So the judge made a further recommendation.
- There should be a mechanism to check, on behalf of the public, that the self-regulator is independent and effective. This mechanism is called the ‘recognition body’ and the judge says that it must be set up in a new law.
What does Lord Justice Leveson not recommend?
- Compulsory regulation: there are only incentives for news organisations to become voluntary members of the self-regulator.
- Statutory regulation: the self-regulator itself is not set up or defined in law.
- Regulation by Ofcom: the judge suggests Ofcom as a possible recognition body, not as a regulator.
- State regulation: there is no role for the Government in the self-regulator or even in the recognition body.
- Reliance on closer policing of the criminal law as it relates to the media. He recognised that this would be “chilling”.
What does Lord Justice Leveson say about statute?
Lord Justice Leveson says that it is essential that Parliament be asked to pass a new law if his scheme is to work properly. The law is needed for three practical reasons.
- To set up the recognition body and give it the authority and the instructions to do its job in ensuring that the voluntary self-regulatory system is effective and independent (See Clause 3 and Schedules 1 & 2 of the Draft Bill).
- To create the legal incentives (in relation, for example, to costs in libel trials) that will make it worthwhile for news organisations to become members of the self-regulator (See Clauses 6-9 of the Draft Bill).
- To link the existence of (A) to the access by the press to (B) – this is called statutory recognition of the self-regulatory system (see Clause 5 of the Draft Bill).
The judge also acknowledged that many people were concerned that the new scheme, or the mere fact of a new law relating to the press, might place news organisations and journalists under the influence of politicians, or at least might make it easier for politicians to influence the press some time in the future. So he recommended that the new law should have a further role:
- To guarantee press freedom and place a duty on ministers to respect it and protect it (See clause 1 of the Draft Bill).
What would the recognition body do?
The judge said that the first task of the recognition body would be to make an assessment of whether a new self-regulatory body created by the industry was genuinely effective and also sufficiently independent of the press and of the Government and other politicians. To make this judgment it would need a set of criteria, and the judge set out in the report what these should be. These are summarised in Clause 3 of the draft bill and set out clearly in more detail and in legal language in Schedule 1.
If the new self-regulator satisfied these criteria it would be ‘recognised’, which would enable the members to enjoy those legal incentives which go with membership. If it did not satisfy the criteria the incentives would not be made available and the industry would have to make the necessary changes to obtain recognition.
This process of inspection and recognition would not happen only once. The report says it should be repeated after two years, then every three years after that and on any occasion where there were reasonable concerns that the arrangements had changed in a way that threatened independence or effectiveness. This is to ensure that the self-regulator does not become less effective over time, or more inclined to favour the industry rather than the public.
The recognition body will never deal with complaints, nor will it fine newspapers or lay down rules for journalists. In fact it would have no direct dealings with newspapers or with editors, except where those editors have roles in the self-regulator. All it does is ensure that the self-regulator meets and keeps to certain standards, and provide access to the incentives accordingly.
What are the recognition criteria?
The requirements for recognition are set out at length in Part K, Chapter 7 of the Report. They are detailed – we have counted around 30 headings – and they describe clearly what a good self-regulator looks like and how it should operate.
For example, the people who run it and who make the key decisions must be able to act independently – and demonstrably so – in other words without being influenced by the editors or owners of the papers they are regulating. It follows that those people themselves can’t simply be appointed by editors, so there should be a transparent, independent process for choosing independent people.
Another example is the code of practice. This is the rulebook under which the self-regulator will judge papers and handle complaints. It is likely to say that stories should be accurate and fair, and that reporters should show respect for people who are grieving or in shock, and other things like that. The judge does not say what should be in the code, but he recommends what sorts of people should be responsible for writing it and for keeping it up to date.
The judge goes into detail about such things because experience has shown that such details are vitally important. The Press Complaints Commission was criticised for, among other things, the lack of independence of its leadership and the exclusiveness of the group that wrote its code. Lord Justice Leveson wants a new self-regulator to get these things right, so that it can command public trust.
The criteria are set out clearly and in legal terms in Schedule 1 of our Bill. They are clearly restricted to the self-regulator’s process, its constitution, functions, powers etc. and they do not dictate anything about the ways the self-regulator should respond to individual complaints.
Will Ofcom be the recognition body?
Not necessarily. The Leveson Report considers at some length what sort of body is required for this job and concludes that the best available candidate is Ofcom. Ofcom already regulates broadcast journalism so it has expertise. It has been around for more than a decade, so it is solidly based. And the judge may also have considered that Ofcom would be a cheaper option than setting up a new body.
He also made clear that a recognition body must have the resilience so as not to be “vulnerable to the sorts of antagonistic campaigns that the press are capable of mounting when they perceive themselves to be under threat”, which he saw as liable to occur.
But the report does not say that Ofcom is the only candidate. The judge acknowledged that for a variety of reasons some people would consider Ofcom unsuitable, so he offered an alternative, which is a Recognition Commissioner or Commission.
This would be new, and he pointed out that it would be an unusual body since it would have only one real job and that might come around only once every three years. At the same time the new body would need to be professional and to have robust processes, able to withstand the kind of legal and reputational challenges that the press industry is capable of mounting. For these reasons the judge suggested that the Commissioner or Commission would require specialised support, and that this should come from Ofcom.
If it’s not compulsory, what is there to get news publishers to join a self-regulator?
The Leveson Report sets out a series of incentives. These provide advantages only to those newspapers (and other news publishers) that choose to join a recognised regulator (one that is verified as an effective and independent one by the recognition body). Some of the incentives have a flip side – which is a penalty (either relative to the benefit for regulated newspapers or in actual terms) for those newspapers that choose not to join a recognised regulator.
What are some of the incentives to join a recognised regulator and how do they work?
The Report recommends a number of incentives: relating to costs, exemplary damages and data protection. The last of these gives rise to wider issues which need to be the subject of consultation by the Ministry of Justice. The draft Bill deals with the first two, and only one aspect of the third.
The first incentive, is that a regulated publisher should, in most circumstances, be able to avoid being ordered to pay the costs of someone who successfully sues them in the Courts. This is because the recognised regulator will have a cheap, accessible and effective arbitration scheme as an option for complainants. There will, in effect, be a “costs penalty” for complainants who do not use this scheme. This incentive should provide significant financial benefits to the press.
The flip side of this is that a publisher that is eligible to be part of a recognised self-regulatory scheme but chooses not to subscribe will suffer costs penalties. This is because if a publisher is not a member complainants will not be able to take advantage of an accessible arbitration option. If a publisher which has chosen not to join is sued then it will not usually be able to recover its costs if it successfully defends court proceedings. In some circumstances, it might be ordered to pay the claimant’s costs even when the claimant loses.
The second incentive concerns exemplary damages. A regulated publisher is protected from the risk of having to pay exemplary (punitive) damages in court proceedings. The flip side of this is that a publisher that chooses not to be part of a recognised self-regulatory scheme runs the risk of being ordered to pay exemplary (punitive) damages if it loses in court.
Thirdly, a regulated publisher is also able to benefit from the way the Information Commissioner (who is in charge of ensuring that data protection rules are followed) approaches enforcement of the Act, because his office can be more confident that correct procedures are in place.
In addition, there is likely to be “kitemark” effect of a voluntary self-regulatory scheme, where membership of the system inspires confidence in readers, contributors and advertisers
What is the role of arbitration?
The availability of cost free arbitration is a key requirement of an independent system of self-regulation. If a voluntary self-regulator does not have an arbitration arm it will not be recognised. The arbitration scheme needs to be accessible, efficient and independent of the industry. It will be funded by the industry and be cheaper for both sides than going to court. By funding and providing an arbitration service, regulated newspapers qualify for the benefits of the incentive system.
What happens if the proposed system is not allowed to work?
Lord Justice Leveson believes that his proposed system – voluntary independent self-regulation which is subject to the recognition test, which in turn unlocks the legal incentives – is workable, offers advantages to the press, does not endanger free speech and will give sufficient protection to the public. At the same time, he acknowledges the possibility that some newspapers might not participate or that the industry might not design a self-regulator that can be recognised.
The judge declined to make any recommendation about what should be the consequence if this happens, nor did he set any time limit in which his scheme must be made effective. He deliberately refused to threaten the newspapers with draconian measures, in the way that previous inquiry reports into the press have done, with no real effect. Instead he discussed a range of possible responses to a failure of his scheme, including regulation by of the press by Ofcom, without putting any of these options into the form of a firm recommendation. The bill takes the approach in clause 4 that in the event of the failure of the industry or significant players within it to make the new system work within a reasonable period, the recognition body will need to report that to the Government, who then need to decide what action to take. The public would expect the politicians to be able to say now what they would do in those circumstances.