The argument over how to ensure the freedom of Britain's press while curbing its excesses shows no signs of abating, with a Royal Charter drafted on behalf of the newspaper industry being rejected by
The argument over how to ensure the freedom of Britain's press while curbing its excesses shows no signs of abating, with a Royal Charter drafted on behalf of the newspaper industry being rejected by the Privy Council earlier this month. A number of press bodies have already sought judicial review of the Privy Council’s decision. In addition, a rival Royal Charter that has already achieved cross-party consensus will be considered by the Privy Council on 30 October. It is as yet unclear what will happen if the Privy Council approves these arrangements but the industry rejects them. It will be fascinating to see what happens next.
In his inquiry into the culture and practices of the press, Lord Justice Leveson recommended voluntary, independent, self-regulation of the press. The model both the industry and politicians are currently seeking to establish is one in which an independent recognition body would be established in order to approve a system for press regulation run by a new successor body to the Press Complaints Commission (which is widely criticised for having failed to effectively regulate the press). The idea is that this will ensure independent oversight over the PCC's successor.
The cross-party deal has alighted on a system where the PCC's successor would be able to demand prominent corrections and apologies from news publishers and could impose fines of up to £1million. It would also provide for a system of arbitration which would provide a swift, low-cost process where those aggrieved by the actions of the press could seek just satisfaction. Members of the new body would also be protected from defending costly libel actions by virtue of the fact that no one could bring an action for libel if they had not first availed themselves of the new arbitration system.
The cross-party proposal has not met with a favourable reception from the press. Critics point to a number of perceived defects in the politicians' proposal. One is that it involves politicians. As such, the cross-party model is argued to constitute state regulation of the press by its very nature. In addition, the critics suggest that this is the thin end of the wedge and that it is not hard to envisage a situation in the future where, perhaps in response to another scandal, Parliament seeks to go further. Others have made the point that, when considering the fact that a number of individuals have already been convicted and that many more will be subject to prosecution in the forthcoming phone-hacking trials, there are already ample means by which unacceptable behaviour by the press is overseen and that the law as it is should be better enforced.
Additionally, critics have pointed to the fact that the Charter bars editors and representatives of media publishers from sitting on the independent recognition body. Objections to this element of the Charter argue that the recognition body will simply be a collection of worthies who will be severely hampered by having no insight into how journalism actually works in practice. Others argue that the importance of the press as the Fourth Estate of the democratic body politic requires that its views be represented.
An additional bone of contention relates to money. Provisions (not yet in force) within the Crime and Courts Act 2013 provide that a publisher who is not a member of the new regulator may not recover its own costs of defending an action for libel and, moreover, may even have to pay the costs of claimants, even where the claim is unsuccessful. Given the typical costs in a contested libel case, these provisions have been characterised as a draconian way to 'persuade' publishers to join the regulator. As a result, a number of press bodies have drafted their own Royal Charter. While there are a number of similarities between the two Charters, there remain a number of disagreements over political involvement, the constitution of the recognition body, corrections and apologies, and the arbitration process.
Campaign groups such as Hacked Off continue to argue that the press's own proposals do little more than try to sell the public a new version of the old, discredited Press Complaints Commission. While the criminal law may deal with the most serious misconduct, critics point to the fact that large numbers of people, whether famous or not, are unable to secure redress for non-criminal abuses. Many in the public eye have consistently been dissuaded from pursuing complaints against the press for fear of further stories appearing. Additionally, the point has been made that the criminal law cannot force retractions of similar prominence to the original story. While a lurid, unsubstantiated headline may appear on page 1 of a paper, a retraction will generally be hidden on page 94. The concern about the Press Charter is that, having failed in the past to provide adequate redress through the PCC, there is no reason to think that things will be any different in the future. As matters stand, it is difficult to see how the two sides can reconcile by 30 October.
Where next?
With the 30 October session of the Privy Council looming, it seems appropriate to wonder what will happen if the politicians consider that the press has had its last chance. Will the politicians press on and seek to enact a Charter to which no one in the industry subscribes? If so, will the proposals enacted in the Crime and Courts Act come into force? Will the courts intervene in the Privy Council’s decision not to ratify the press’s draft charter? Will it take a significant costs award against a publisher in a libel action to frighten others in the industry to sign up?
On the other hand, will the papers form their own new body and, in a modern reversal of 'publish and be damned', defy the politicians to do their worst? Should an entity regulator really be established without the benefit of expertise from the industry it seeks to regulate? Where should that industry's influence over the regulator end? Will the newspapers, some of whom have historically been less than sympathetic to human rights law, seek to use the ECHR to argue in the domestic courts (and, if necessary, Strasbourg) that the politicians' proposals are a breach of their Article 10 right to free expression?
Perhaps more importantly, there remain a number of questions that will never go away. Will increased regulation chill free expression? Is an inevitable consequence of a free press that its excesses are the price to pay for its benefits? If so, is there a better way for victims of press 'monsterings' to be able to achieve greater satisfaction of their grievances? Is it so difficult to establish a system in which individuals who are aggrieved by press action can be entitled to (i) reasonably prominent and swift retractions and (ii) suitable compensation without having to take their case to the libel courts? What about the internet? Finally, periodic howls of outrage aside, when one considers the success of the Sun on Sunday and the continuing premium on celebrity gossip and exposés, does the British public really care?
In his inquiry into the culture and practices of the press, Lord Justice Leveson recommended voluntary, independent, self-regulation of the press. The model both the industry and politicians are currently seeking to establish is one in which an independent recognition body would be established in order to approve a system for press regulation run by a new successor body to the Press Complaints Commission (which is widely criticised for having failed to effectively regulate the press). The idea is that this will ensure independent oversight over the PCC's successor.
The cross-party deal has alighted on a system where the PCC's successor would be able to demand prominent corrections and apologies from news publishers and could impose fines of up to £1million. It would also provide for a system of arbitration which would provide a swift, low-cost process where those aggrieved by the actions of the press could seek just satisfaction. Members of the new body would also be protected from defending costly libel actions by virtue of the fact that no one could bring an action for libel if they had not first availed themselves of the new arbitration system.
The cross-party proposal has not met with a favourable reception from the press. Critics point to a number of perceived defects in the politicians' proposal. One is that it involves politicians. As such, the cross-party model is argued to constitute state regulation of the press by its very nature. In addition, the critics suggest that this is the thin end of the wedge and that it is not hard to envisage a situation in the future where, perhaps in response to another scandal, Parliament seeks to go further. Others have made the point that, when considering the fact that a number of individuals have already been convicted and that many more will be subject to prosecution in the forthcoming phone-hacking trials, there are already ample means by which unacceptable behaviour by the press is overseen and that the law as it is should be better enforced.
Additionally, critics have pointed to the fact that the Charter bars editors and representatives of media publishers from sitting on the independent recognition body. Objections to this element of the Charter argue that the recognition body will simply be a collection of worthies who will be severely hampered by having no insight into how journalism actually works in practice. Others argue that the importance of the press as the Fourth Estate of the democratic body politic requires that its views be represented.
An additional bone of contention relates to money. Provisions (not yet in force) within the Crime and Courts Act 2013 provide that a publisher who is not a member of the new regulator may not recover its own costs of defending an action for libel and, moreover, may even have to pay the costs of claimants, even where the claim is unsuccessful. Given the typical costs in a contested libel case, these provisions have been characterised as a draconian way to 'persuade' publishers to join the regulator. As a result, a number of press bodies have drafted their own Royal Charter. While there are a number of similarities between the two Charters, there remain a number of disagreements over political involvement, the constitution of the recognition body, corrections and apologies, and the arbitration process.
Campaign groups such as Hacked Off continue to argue that the press's own proposals do little more than try to sell the public a new version of the old, discredited Press Complaints Commission. While the criminal law may deal with the most serious misconduct, critics point to the fact that large numbers of people, whether famous or not, are unable to secure redress for non-criminal abuses. Many in the public eye have consistently been dissuaded from pursuing complaints against the press for fear of further stories appearing. Additionally, the point has been made that the criminal law cannot force retractions of similar prominence to the original story. While a lurid, unsubstantiated headline may appear on page 1 of a paper, a retraction will generally be hidden on page 94. The concern about the Press Charter is that, having failed in the past to provide adequate redress through the PCC, there is no reason to think that things will be any different in the future. As matters stand, it is difficult to see how the two sides can reconcile by 30 October.
Where next?
With the 30 October session of the Privy Council looming, it seems appropriate to wonder what will happen if the politicians consider that the press has had its last chance. Will the politicians press on and seek to enact a Charter to which no one in the industry subscribes? If so, will the proposals enacted in the Crime and Courts Act come into force? Will the courts intervene in the Privy Council’s decision not to ratify the press’s draft charter? Will it take a significant costs award against a publisher in a libel action to frighten others in the industry to sign up?
On the other hand, will the papers form their own new body and, in a modern reversal of 'publish and be damned', defy the politicians to do their worst? Should an entity regulator really be established without the benefit of expertise from the industry it seeks to regulate? Where should that industry's influence over the regulator end? Will the newspapers, some of whom have historically been less than sympathetic to human rights law, seek to use the ECHR to argue in the domestic courts (and, if necessary, Strasbourg) that the politicians' proposals are a breach of their Article 10 right to free expression?
Perhaps more importantly, there remain a number of questions that will never go away. Will increased regulation chill free expression? Is an inevitable consequence of a free press that its excesses are the price to pay for its benefits? If so, is there a better way for victims of press 'monsterings' to be able to achieve greater satisfaction of their grievances? Is it so difficult to establish a system in which individuals who are aggrieved by press action can be entitled to (i) reasonably prominent and swift retractions and (ii) suitable compensation without having to take their case to the libel courts? What about the internet? Finally, periodic howls of outrage aside, when one considers the success of the Sun on Sunday and the continuing premium on celebrity gossip and exposés, does the British public really care?