Liberty, Leveson and the culture, practice and ethics of the press
Regrettably, confusing reports in today's media (Sunday 2 December) about Liberty's position on the Leveson Report make this statement necessary and that Report all the more important. Law and regulation is a complex area at the best of times and clarity is difficult when emotions run as high as they inevitably do on the vital issues of precious press freedom on the one hand and abuse of power and violations of privacy on the other.
1. The Leveson Report recommends a robust independent self-regulation of the press of a kind that has not been provided or suggested by the industry up to now. Liberty is in complete agreement with the Judge's view of the necessary characteristics of such a body whose board must be independent of current editors, owners and politicians. It must set and promote ethical standards, handle complaints and crucially offer a swift and cheap alternative to court action for members of the public whose rights (e.g. privacy and reputation) have been violated. No statute is needed to create such a body and editors and proprietors should take the Leveson characteristics and seek to build one without delay.
2. Whilst the general level of damages in privacy cases should go up to protect victims from unscrupulous outlets, ethical publishers who set up, join and comply with such an independent body should be rewarded in the context of costs and damages in any court action that they nonetheless face. Liberty thinks it arguable that such rewards could be achieved immediately by way of civil procedure and judicial discretion, but would be perfectly content with a simple statute offering greater certainty and protection to those publications who took the trouble to join and comply with an independent regulatory body.
3. On the issue of who decides whether a body does or does not comply with the Leveson characteristics (set out in a statute), both Leveson LJ and Liberty agree that this will ultimately be a judgment for the courts. However whilst the Judge believes that a primary expert decision should be made by a body such as OfCom, subject to Judicial Review, Liberty would rather leave the question of whether the tests are met to the courts and not involve a quango which is ultimately appointed by politicians. This is a detail that the Judge clearly and graciously footnoted in his Report in the context of Liberty's Director's role as one of his assessors.
4. Leveson does not recommend compulsory statutory regulation of the press and Liberty believes that he is right not to do so. However, he moots the very difficult question of what would happen if all or significant portions of the press failed to rise to the challenge of his Report and create and support a sufficiently robust and independent body. He reflects on (without recommending) the possibility that parliament and the public might feel the need to impose some level of compulsory statutory regulation on outlets that refused to play their part. It is this alternative that Liberty cannot support and which would in our view, breach Article 10 of the ECHR and Human Rights Act. As this last-ditch alternative is not even a recommendation of the Report, it is misleading to suggest that Liberty or its director is in any way dropping a "bombshell" on the Lord Justice's Report, not least as this position was clearly footnoted in it.
5.Liberty remains a cross-party non-party human rights organisation and has remarked on the haste with which all political party leaders have formed their positions on such a long and detailed Report (whether in appearing to rule out any legislative action or in endorsing every dot and comma without further debate).