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01 Nov 2016

What’s going on with UK press regulation?

A SLOVENIAN colleague asks: "What's going on with press regulation in the UK?" It is the sinking feeling in my stomach that tells me what a bizarre mess it has become. Here is an attempt at an answer. If you just want to know what's proposed, skip straight to sections E and G.

A In the beginning was the Press Complaints Commission. It was funded by newspapers. Many of its board members were editors of newspapers. It had some effect deterring editors against gross breaches of the code of conduct, merely from the sinking feeling when a complaint arrived and several days of your life disappeared into the resulting bureaucracy. As so often, the punishment was in the process, not the verdict. It also deterred editors from annoying or exposing those who were likely to make unjustified complaints, for the same reason. The NUJ consistently opposed it, not least for its owner bias and lack of effect in promoting actual ethical journalism.

B Allegations of malpractice at News International newspapers rumbled on through the early years of the century. Clive Goodman, the royal editor of the News of the World, and a private detective admitted in 2007 to hacking Royal telephones. Owner News International insisted that Goodman was a lone "bad apple". The Guardian reported in July 2009, however, that NI had paid large settlements to more phone hacking victims, on condition of their silence.

C From Spring 2011 News International began publicly admitting liability and paying massive compensation to people whose phones the News of the World had tapped. Cases against it and other publishers, and criminal cases and appeals against their verdicts for offences such as paying bribes, continue. The News of the World was closed in July 2011 after it was reported that the phone of murdered Milly Dowler was hacked while she was missing in 2002. Later, to no-one's surprise, NI launched the Sun on Sunday.

D Lord Leveson, a senior judge, was appointed in July 2011 to conduct an inquiry into the "culture, practices and ethics of the press". Misdeeds were identified in a report published on 29 November 2012. Leveson recommended abolishing the PCC, quoting the then Prime Minister's description of it as "ineffective and lacking in rigour" and the Leader of the Opposition characterising it as a "toothless poodle".

E But what to do to carry out Leveson's recommendation? State regulation of the press is very, very scary. So a cunning plan was concocted, dredging the depths of the UK's unwritten constitution for inspiration. There would be a Royal Charter for a press regulator - formally set up by the Crown, not the government. It would in turn set up:

  • an Independent Appointments Panel, which would select members of
  • a Recognition Panel, which would decide whether or not to recognise one or more
  • press regulation organisations.

The regulator or regulators would be independent of government, subject to continuing to be recognised under the Charter. Their boards would consist of people with experience of the press who were not current editors, and independent members.

F The National Union of Journalists stirred some controversy by supporting Leveson's outline of independent regulation (it being the least bad visible idea). Some journalists were persuaded by the argument from publishers that it amounted to state regulation and the sky would fall and their jobs would be toast. The NUJ's 2016 Delegate Meeting confirmed this support.

G But how could the publishers be persuaded to take part? With a stick. On 25 April 2013 the Crime and Courts Act was passed - with a provision saying that Ministers could bring different parts into effect when they chose.

Section 40 of the Act provides that when a publisher which is not registered with an "approved regulator" is sued for defamation (libel or slander):

  • the court must award costs against the publisher, win or lose (unless the court is satisfied that it is "just and equitable in all the circumstances of the case to make a different award of costs"); and
  • the court is, broadly speaking, more likely to impose "exemplary damages" to deter others from malpractice similar to that complained of.

If a publisher is registered with an "approved regulator" then the court must not award costs against it (with a similar proviso to leave the courts with discretion).

So that's a pretty big stick, given the six- and seven-digit costs common in UK defamation proceedings. Once more, but with teeth: the punishment is in the process more than the sentence. (And legal costs in defamation proceedings are often an order of magnitude greater than any penalty imposed.)

Also, publishers say that if they are registered with an "approved regulator" they must pay up to £3000 of the complainant's costs in going through an arbitration procedure. (Still looking for details of this.)

The implications of all this will change as the effect of the Defamation Act 2013 filters through the legal system - in the law of England and Wales we don't know what an Act means until an Appeal Court or ideally the Supreme Court tells us. Some of the words in the Defamation Act that the courts most need to interpret are:

A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.

There's a discussion of one High Court case here: the plaintiffs had permission to go to the Court of Appeal but didn't.

H On 30 October 2013 the Privy Council, formally a body of advisers to the Queen, granted a Royal Charter to govern a press regulation system - despite a last-minute attempt to stop it in the courts by publishers including News UK (successor to News International) and the Barclay Brothers, owners of the Telegraph and Spectator.

I In the Spring of 2014 these objecting publishers appointed a former Lord Justice of Appeal as Chair of IPSO, a regulator which surely has some technical differences from the Press Complaints Commission - for example there is only one currently serving editor on its Board: Trevor Kavanagh, columnist and assistant editor of the Sun for News International. Paul Dacre, editor of the Daily Mail, chairs the Editors' Code Committee, as he did for the Press Complaints Commission - alongside new non-editor members. (The acronym for "Independent Press Standards Organisation", seems likely to have been chosen as a reference to the legal Latin tag ipso facto, "by the very fact", which could be taken as an aggressive statement of creating "facts on the ground" more powerful than law.)

J IPSO started hearing complaints on 8 September 2014. The Press Complaints Commission ceased operation on the same day. In its first annual report IPSO stated that in 2015 it:

investigated 512 complaints. 269 of those were resolved between the complainant and the publication. 64 of the 269 complaints were mediated to an agreed resolution by IPSO with the complainant and the publication concerned. Of the remaining 243, 60 complaints were upheld by IPSO's Complaints Committee and 183 were not upheld.

Like the PCC, IPSO is funded by payments from publishers.

K On 3 November 2014 the Press Recognition Panel was formed to carry out the functions under the Charter of recognising press regulation bodies. IPSO did not apply to the PRP.

L Meanwhile, in December 2013 (or "mid-2013"?) discussions had started about forming a regulator to fit into the proposed framework. In January 2016 it was launched as Impress (The Independent Monitor of the Press). On 30 October 2016 the most prominent of the newspapers it regulated was the Waltham Forest Echo and the most prominent magazine the New Internationalist. Its website does not report it having ruled on any complaints.

Impress is largely funded by a charitable trust founded by Max Moseley, son of the British fascist Oswald Mosley and Diana Mitford. In 2008 Moseley won damages from the News of the World for grossly invading his privacy. (Mr Justice Eady ruled that, despite some of the attendees at a reported orgy wearing German World War 2 uniforms, there were no Nazi connotations.)

M The Guardian, Financial Times and Independent (now online-only) have not signed up to either Impress or IPSO; nor have magazine publishers such as Reed Business Information. They run their own complaints and corrections systems and policies.

N On 11 October 2016 the House of Lords passed an amendment to the Investigatory Powers Bill applying to cases where publishers are accused of phone-hacking the same rule that those which are not governed by an "approved regulator" would pay both sides' costs. On 1 November 2016 this was overturned by the House of Commons. As commentator Roy Greenslade points out, it was unclear how it would be determined whether a case was in fact about phone hacking.

O On 25 October 2016, after a consultation, the Press Recognition Panel agreed to recognise Impress.

P On 26 October 2016 Trevor Kavanagh (an IPSO board member) wrote a crowing column in the Sun following an IPSO ruling that the Sun had not shown religious discrimination against Channel 4 newsreader Fatima Manji for wearing a headscarf when reporting the attack in Nice, France. This attracted unfavourable comment (also here and here) and led IPSO to distance itself from Kavanagh's column.

Q Impress having become an "approved regulator" it is open to the government to bring Section 40 of the 2013 Act into force. The government announced on 1 November 2016 that it would hold a further 10-week consultation on Section 40.

And, oh, yes, to consult on the promised Part 2 of the Leveson Inquiry, looking at specific claims about phone hacking and relations between publishers and the police...

R On 25 November the campaign group Hacked Off issued a statement saying "just get on with it", saying the government had been "panicked into" the consultation. The NUJ is working on a response.

25 February 2017

S The NUJ welcomed the House of Commons Culture, Media and Sport Committee's recommendations on Section 40. General Secretary Michelle Stanistreet said: "the NUJ's position, now supported by the parliamentary committee, has been to call for partial implementation of Section 40. In our view, publications who have signed up to a system which facilitates cheap and accessible arbitration can only be a good thing. The punitive elements of Section 40, however, must be held back. It is untenable for any newspaper or magazine to face bearing both sides' costs when vexatious litigants initiate action."

Further, "the union also believes the relationship between some newspapers and the police must also be investigated as part of Leveson 2..."

I fear parts T to Z follow.