Liberty - Protecting civil liberties, promoting human rights

Legal incentives (such as protection from exemplary damages, legal costs and the opportunity to influence the case-law on privacy and free speech), could be provided for ethical publications who set up and comply with a scheme independent of both the state and serving editors/owners.

Liberty’s Director, Shami Chakrabarti, was on the panel of Assessors who advised Lord Justice Leveson – but is responding as the head of the human rights organisation and not in her role on the panel:

“Leveson’s main proposal makes sense for the public, press and politicians alike. The press sets up a robust body – independent of Government and serving editors – and earns legal protections from needless challenges in court. The public gets confidence of greater access to justice and redress when things go wrong. What nobody needs and Liberty cannot support is any last-resort compulsory statutory press regulation – coming at too high a price in a free society.”

What is the Report’s main recommendation on press regulation?

• The Report proposes a model of robust and independent self-regulation with the press setting up an independent regulator(s), membership of which will earn certain legal “rewards”.
  
• The features which a regulatory group will need to gain the incentives include: a Board that is independent of industry (eg. no serving editors); a complaints arm; powers to investigate; an arbitral arm which can deal with defamation and breach of confidence complaints; a standards and ethics-setting arm; and the power to impose fines.
  
• It is also recommended that increased “exemplary” damages should be introduced in privacy/breach of confidence cases and that Information Commission resources and sanctions are increased to ensure the better enforcement of the civil and criminal law.
  
• Incentives to establish and join an independent body will include protection from (proposed exemplary) damages; discounts in legal costs; and the opportunity to influence developing law on the balance between free speech and privacy.

Why is this good for the public?

• Ordinary members of the public will have access to an inexpensive regulatory and complaints system independent of serving editors and politicians.
• There would be higher damages awarded in cases where there is a flagrant violation of privacy (acting as a strong commercial disincentive against media privacy breaches).
• Court action is beyond the financial reach of most people. This would bring readier and cheaper access to justice with a body that has more powers, is more independent and has more clout than the PCC.
• The public will benefit from a press that remains free from Government/Parliamentary control, safeguarding its ability to hold elected representatives and a powerful state to account.

Why is this good for the free press?

• The press would NOT be subject to statutory/Government regulation maintaining its important constitutional and democratic function in holding the state to account.
• It gets legal rewards for setting up its own robust independent system, including protection from excessive damages; costs discounts and the opportunity to shape and influence the developing law on the balance between free speech and privacy. There has been widespread concern about privacy injunctions and super injunctions. Under this system, if the independent regulator advised in favour of publication but an injunction was then sought through the courts, editors would be able to go to court armed with an advisory expert opinion from that body. This is a considerable improvement on the “Hunt-Black proposal” – giving a greater ability to influence case-law on privacy and free speech and creating a disincentive against aggressive litigants rushing off to court. Even if a member of the press loses a difficult, finely-balanced case, if the successful claimant hasn’t gone through the independent system they could find they have to pay their own costs and possibly the newspaper’s costs as well.

What about the internet?

• This system would also be able to keep up with the internet as it wouldn’t be necessary to define what is meant by “press”.  Bloggers etc would be able to set up their own group(s) benefiting from the same potential incentives and the public would have the same potential opportunities of redress.

How does this differ from statutory regulation?

• It would not be compulsory for newspapers to form a regulatory group and it would not be compulsory to form a group that conforms to the standards set out by Government/Parliament. 
• The legislation proposed will only set out the characteristics that any regulatory group must meet to gain the incentives. The statute does not set up the regulator itself. Theoretically there could be many bodies, so if one publication didn’t want to be in the same group as a certain paper, it’s open to them to set up another.

What Liberty cannot support

• The Report’s backstop alternative proposal (not desired or recommended) – should the industry or parts of it not accept the self-regulation model – is something that Liberty cannot support. Any possible alternative of compulsory regulation, either for all newspapers or those who will not join the voluntary scheme, would amount to state regulation of the press and in our view be dangerous for free speech and democracy.

NOTES TO EDITORS:

1. The panel of Assessors was appointed by the Prime Minister for their expertise in the range of issues being considered by the Inquiry. Their job was to advise Lord Justice Leveson in those areas of expertise rather than on findings of fact which are purely a matter for the Judge. Contrary to some media reports, Shami Chakrabarti remained in Liberty's employment and neither she nor Liberty have taken any remuneration or expenses for her role on the panel.

2. Whilst the Report acknowledges that whether an industry body meets the criteria triggering legal benefits will ultimately be a matter for the courts, it suggests that a “recognition body” should initially decide whether a press regulatory group meets the statutory standards. Liberty regards this as unnecessary bureaucratic intervention and believes that this “recognition” should be left to the Courts not a quango.

3. The report also proposes changes to the Information Commissioner’s Office. For example it recommends making the ICO a Commission with increased resources and to expand prosecution powers to cover any offence that is in breach of privacy principles. It also proposes increasing the penalty for breach of section 55 of the DPA (unlawfully obtaining, disclosing or procuring the disclosure of personal information without the consent of the data controller) – to include a custodial sentence. Compensation would also be extended to individuals who have suffered distress but not financial loss, as a result of a breach of the DPA requirements. In discharging its functions, the ICO would take into account whether newspapers were members of a regulatory group. Liberty supports these suggestions.

4. The national newspapers have been understandably unanimous in their rejection of state regulation but have generally agreed with the need for effective, independent regulation. In Liberty’s view they should all be able to support and implement the principal (if not the last-resort) proposal in the Leveson Report:

“There is scope for a new, tougher self-regulator – one with the power to proactively investigate and to fine”

The Independent, 27^th Nov 2012

“The proposals for a new voluntary regulator are extremely severe on wrongdoers… Nobody can call such a regime toothless”

Mail on Sunday, 25^th Nov 2012

“The crucial question to any journalist advocating independent regulation over statute is this: is the new regulator proposed by the press sufficiently tough, independent and enduring to command widespread public support?”

The Guardian, 26^th Nov 2012

“How would a belligerent press behave if they saw a powerful, self-regulated industry behave as badly as journalism sometimes has over the last ten years?”

The Observer, 25^th Nov 2012

“No one defends the PCC, the toothless self-regulator of the press for the past two decades…”

Independent on Sunday, 25^th Nov 2012

“…we need to move to a system of independent regulation with a judicial, not statutory, backstop”

The Times, 27^th Nov 2012

“...a new self-regulatory structure…should have the power to summon editors and journalists to answer for their actions, and to punish newspapers with substantial fines if they breach the code of good practice. It should also have a duty to report suspected crimes to the police. It must offer a fair, fast and forceful solution when issues arise. Public confidence in it will depend on its ability to hold newspapers firmly to account”

Daily Telegraph, 28^th Oct 2012