A case is being made in the press – and no doubt we will hear more of it – that in the debate over press self-regulation Hacked Off is intransigent, stubborn and unreasonable. It’s another lie.
Here’s a list of the dozen principal concessions to press demands made by Hacked Off and others who advocate effective, independent press self-regulation.
1. No compulsion. The Leveson inquiry heard many calls for compulsory regulation covering all large news publishers, in order to address the historic problem of newspaper groups simply opting out when it suited them. Newspaper groups argued against this and Lord Justice Leveson listened to them, recommending instead a voluntary arrangement backed by carrots and sticks, including benefits for participating papers in terms of court costs.
2. No statutory right of reply. Again, many at the inquiry called for a legal right for people unfairly maligned by the press to be able to respond in print, something that works well in a number of European countries. The press also opposed this and again got its way, as Lord Justice Leveson did not recommend it in his report.
3. No ‘Leveson Law’. The judge recommended in his report that his scheme for a system of inspection of the new self-regulator (the ‘recognition’ body which will check to ensure basic standards are met) should be fully backed by an Act of Parliament. The newspapers opposed this and David Cameron bowed to their wishes, so statute was dropped in favour of the less democratic vehicle of Royal Charter. Hacked Off and the victims of press abuses, with some reluctance, accepted this.
4. No explicit mention of the Charter in statute. Even Mr Cameron saw that the new Royal Charter would need a clause of law to protect it from ministerial meddling, but again to please the press it was agreed that this clause should not explicitly mention the particular Charter in question. Hacked Off accepted this gesture to the press.
5. Control of the code. Leveson recommended that the code of standards against which journalists’ ethical conduct would be judged should be the responsibility of the independent board of the self-regulator. There would be a code committee to draft it, with a lay majority, but its role would be advisory only. The press bitterly opposed this and to meet their objections a different arrangement was devised for the Royal Charter under which the code committee would have an industry majority and would have authority to write and revise the code, with the board merely ‘adopting’ it. Hacked Off accepted this very important concession to press industry power.
6. Exemplary damages 1. Leveson said that while news publishers inside the self-regulator should have some protection from exemplary damages where they were sued in court for particularly outrageous conduct, they should not have immunity because that would give them a licence to act unethically. At the demand of the press this was watered down so that publishers would be immune from exemplary damages (even if they lied to their regulator) unless the regulator acts in a ‘manifestly irrational’ way. With great reluctance, Hacked Off and its supporters accepted this change.
7. Exemplary damages 2. Leveson said that exemplary damages, which can awarded in libel cases where the defendant has acted recklessly and for profit, should also be available to judges to award in privacy and harassment cases. Under press pressure and at the last moment, a delay was introduced on this change, which will not come into force until a year after the recognition body is established. Hacked Off accepted this concession.
8. Recognised regulators should be subject to the Freedom of Information Act. This obvious requirement was advocated by Hacked Off as something that would give the public a right to know what the self-regulator was doing. Even though papers routinely use the Act to scrutinise other bodies, they fought against it in this case. The requirement was removed from the Charter and Hacked Off reluctantly accepted this.
9. Recognised regulators must be financially secure. Leveson’s Recommendation 6 was clear about the need to ensure that the press industry was not able to influence the self-regulator through the control of its purse strings (a fatal flaw of the old Press Complaints Commission). The industry would pay the bills, but in an open way and on a long-term basis. At the behest of the industry this was watered down. Hacked Off has accepted this change.
10. Eight recommendations from Leveson left in limbo. Besides his main recommendations, Leveson said clearly that a self-regulator ‘should consider’ eight actions, including for example the introduction of protective ‘conscience clauses’ in journalists’ contracts. The draft Charter at one stage included a requirement that a self-regulator must at least show it has considered these matters, but again the industry objected and again the concession was made.
11. Review of arbitration. Although the arbitration was proposed by newspapers themselves at the Leveson Inquiry and is considered to be an essential part of the scheme, some in the press have made exaggerated claims that the scheme will not work. To allay newspapers’ concerns, the cross-party Royal Charter gave the Recognition Panel responsibility for assessing the arbitral scheme as part of each of its cyclical reviews and making recommendations for changing the arbitral scheme if it is not fair, effective or sustainable.
12. Third party and group complaints. Leveson recommended that any new regulatory Board should have the power to hear complaints whoever they come from including from representative groups and third parties. To allay newspapers’ concerns that this would lead to arguments or lobbying from interest groups, the cross-party Charter added clarification that the Board have the discretion not to look into complaints if they feel that the complaint is without justification, is an attempt to argue a point of opinion rather than a standards code breach, or is simply an attempt to lobby, and – in the case of representative groups – added a requirement that there should be a public interest in the Board considering the complaint.
Taken together, these and other concessions to the press in the Royal Charter represent a substantial retreat from the tough system most members of the public expected to see after the Milly Dowler revelation. The industry, in keeping with its long history of denial of its responsibility towards the public, fought every inch of the way. It prevented compulsion, it prevented statute, it got industry control of the code, it twisted exemplary damages in its favour, it ducked the Freedom of Information Act and it airbrushed out eight Leveson recommendations.
These concessions were made in good faith in the hope that the industry’s leaders would be persuaded to ‘buy in’ to the new system, but as we know they have not done so. Lord Justice Leveson foresaw this. He proposed, and Parliament approved, a system of carrots and sticks to get papers into the system. The next step is not to make more concessions, but to get those carrots and sticks working and see how the press responds.
Meanwhile, the industry’s own position could not be more intransigent. Its latest scheme, set out in the PressBoF draft Royal Charter, is even further from Leveson than the 12 February draft Charter which it produced with Oliver Letwin, which in turn was a recycling of the Hunt-Black plan that was so firmly rejected by Leveson and Cameron. What all of these have in common is that they put the industry before the public, they deny accountability, they reserve power for proprietors and editors and they preserve the old order symbolised by the Press Complaints Commission. Any changes along the way have been – to use Leveson’s telling word about the industry’s traditional approach to these things – ‘cosmetic’.
So who is intransigent?