The Department of Culture, Media and Sport is currently running a consultation on the future of press regulation. But how genuine is the consultation? Will they really take any notice of the responses, or is it just an opportunity for the powerful mainstream media to lobby hard to continue its cosy and not very effective system of self-regulation?

The story so far

Following the Leveson Inquiry into phone-hacking and other misconduct by the newspaper industry, the rather feeble Press Complaints Commission was abandoned. Instead, the major national tabloids and local newspapers groups banded together to form a new regulator called IPSO (the Independent Press Standards Organisation). But they kept the same old Editors’ Code. We examined IPSO in some detail in a previous post: Press regulation: why we are unimpressed by IPSO.

The Leveson Report in 2012 set out 29 criteria which it said any future approved press regulator should comply with. In due course a Press Regulatory Panel (PRP) was set up under Royal Charter, in order to approve any regulator who complied with all 29 of the Leveson criteria. However, a key requirement for the members of IPSO was that it should NOT be Leveson-compliant to the extent of being approved by the PRP, because that seemed to them too close to the idea of being directly regulated by the government. Yet although it claims to be independent of the government, IPSO cannot claim to be independent of the publishers it is supposed to be regulating, as our post explained.

Meanwhile, a rival regulator, IMPRESS, has now been approved by the PRP, who found that it was fully Leveson-compliant. 

IMPRESS does not have a big roster of national newspapers signed up, though it has a respectable number of smaller publishers who have agreed to abide by its Code of Conduct. There is currently a consultation on what should go into the Code, to which TP responded with our own suggestions. You can read our response here.

One of the main criticisms made about IMPRESS relates to its funding. It has a funding agreement with something called the Independent Press Regulation Trust (IPRT), a charitable trust funded in turn by the Alexander Mosley Charitable Trust (AMCT), whose main donor is Max Mosley. The PRP report approving IMPRESS noted, drily, that

Max Mosley has well-known views on privacy and on the behaviour of the press and has taken newspapers to court.

The stories about which Mosley took the papers to court were, to say the least, colourful. But he won quite substantial sums in damages for intrusion into his private life, and the newspapers were pretty sore about it afterwards.

Having considered, in some detail, the matter of IMPRESS’s independence from the sources of its funding, the PRP concluded that 

We therefore consider that the IMPRESS funding arrangements are not such as to compromise their independence for the purposes of the Criteria.

Another common complaint is directed at the Royal Charter under which the PRP operates. It is said that this is only one step away from the PRP being run directly by the government. But David Wolfe QC, chair of the PRP, answers that in his Annual Report on the recognition system published in October 2016:

We have a unique and unprecedented independence, and the Charter provides that we avoid any undue influence by anyone. The Charter itself can only be changed by a two thirds majority in the House of Commons, the House of Lords and the Scottish Parliament and with the unanimous agreement of the PRP Board.

What next?

Apart from the question of independence, the big debate now concerns what should happen when somebody sues a publisher. In particular, who should pay the legal costs?

The question arises because after the Leveson Report, legislation was put in place which provides that newspaper publishers who are not signed up to an approved regulator would have to pay the costs of any libel actions brought against them, even if they win. Publishers can avoid this draconian condition if they sign up to an approved regulator, but most of them prefer to be “self-regulated” by IPSO.

The relevant provisions are in section 40 of the Crime and Courts Act 2013, which has been enacted by Parliament and is on the statute book, but that particular bit of it has not yet been brought into effect. Two things needed to happen to bring it into effect.

First, under subsection (6) of section 40, ”This section does not apply until such time as a body is first recognised as an approved regulator”. That condition has now been fulfilled by the fact that such a body, namely IMPRESS, has been recognised as an approved regulator, by the PRP.

Secondly, the relevant minister — who in this case is the Secretary of State for Culture, Media and Sport, Karen Bradley MP — has to make a commencement order, which is a piece of secondary legislation bringing the primary legislation (section 40 of the 2013 Act) into effect.

However, instead of simply deciding whether or not to do so, she has thrown the matter open to the public with a consultation. She said that the Government was

keen to take stock and seek the views of the public and interested parties—not least those who have been the victims of press abuse.”

At the same time, the consultation will also invite views on whether to proceed with Part 2 of the Leveson Inquiry, which

was intended to examine wrongdoing in the press and the police, including the failure of the first police investigations, corporate governance issues and implications for police and press relations.”

The resumption of the Leveson inquiry had been put off pending the completion of a number of criminal proceedings involving journalistic misconduct. The last of these was R v France (Anthony) [2016] EWCA Crim 1588 (Case summary: [2016] WLR (D) 566.) In that case the Court of Appeal quashed the conviction of a journalist for “encouraging a police officer to commit misconduct in public office”. That left the way open to resume the inquiry into such matters because there was no longer any risk of it prejudicing any criminal trials arising out of the same events.

The consultation was opened at the beginning of November and will run till 10 January. You can download the consultation here.

What will happen?

We don’t have a crystal ball. But the omens are not good.

First of all, the mainstream newspaper publishers form a very powerful lobby. When they shout, politicians seem to listen. When other people shout, politicians don’t always hear them. So it will be interesting to see how many people who do not have a vested interest in maintaining the status quo take the trouble to respond, and how those responses are treated by the Department of Culture, Media and Sport.

Secondly, and perhaps more persuasively, the newspapers control the very medium in which any genuinely public discussion of these matters is likely to take place. So, as soon as the consultation was announced, lots of newspaper columnists duly trotted out articles complaining about the effect of article 40. It was like everyone being given a three-line-whip to show up and support the home team. Newspaper publishers were hardly going to bend over backwards to give a platform to anyone arguing in favour of tighter regulation, and they didn’t. You had to go to broadcasters and bloggers to find that side of the argument.

Even someone as measured and balanced as Matthew Parris in the Times grew quite hot under the collar, saying (May’s state controls will destroy the press): 

[Section 40]  would allow anyone to take libel action against a local or national newspaper knowing that the defendant — the journal — will probably have to pay the costs even if they win the case. It’s like sticking a “kick me” sign on somebody’s back. This is so cockeyed as to defy satire.

As for the provision for the judge to disallow such costs where it would not be “just and equitable” to require the newspaper to pay them,

Nobody knows how judges might interpret that weird let-out “just and equitable in all the circumstances”. “Just” and “equitable” mean the same thing. “In all the circumstances” adds nothing. So, stripped of repetition and padding, what Section 40 says is that the judge is not required to act unjustly.

This is not really fair. Though it may sound like a tautology, the phrase is actually a well recognised one and there are dozens of cases explaining how such a condition is to be applied in all sorts of circumstances. It is actually not only likely but probable that any claims which are bogus or vexatious would be thrown out of court, with the claimant paying the wasted costs. But Parris, who uses the outdated word “plaintiff” for what has been called a “claimant” in the courts of England and Wales since 1998, hasn’t really bothered to look into this.

He accepts that under section 40 none of this would happen if the newspaper signed up to a Leveson-compliant regulator, but trots out the party line that this is no better than state control, even at one remove, and then accuses Impress of being “funded by Max Moseley” (in fact it is funded by a charity into which he happens to have made a large donation).

Like many defenders of the free press as a bastion against oppression, he overlooks the harm the unregulated press can and does do in the way of oppressing its victims and, perhaps more significantly, in distorting the facts on which ordinary people rely when exercising their democratic right to vote: what Roy Greenslade, the Guardian’s media commentator, recently called the “anti-immigrant, anti-EU, racist, sexist, xenophobic, homophobic agendas of newspapers”. 

(Parris may also care to reflect that a more effective bastion against arbitrary government is the independent judiciary, but the newspapers don’t see it that way, preferring to label judges “enemies of the people”.*)

He is right to point out that none of this applies to the world of digital news and commentary and social media – which as we have seen recently have proved fertile soil for “fake news” and the rapid and easy dissemination of conspiracy theories, moral panics and the like. If anything, that is what Leveson 2 should be looking at. If it ever happens.

For a more extreme and partisan view, listen to the editor of the Daily Mail, Paul Dacre, who for the last eight years has been the chair of the Editors’ Code Committee at IPSO (you can see just how independent that makes it), who recently said: 

I still have to pinch myself that we live in a country in which the government’s press regulator is financed by Max Mosley and that papers who refuse to sign up to it will not only face punitive damages in libel courts but could be forced to pay a claimant’s costs even if the article concerned is entirely true and the paper wins its case.

The problem with Max Mosley, by the way, is that he sued the press and won (see above). But he is not the only reason the IPSO press members oppose IMPRESS. There’s also the fact that it is supported by Hacked Off, the organisation that called them out on phone hacking and other abuses, and lobbied vociferously for reform – prompting the government to set up the Leveson Inquiry.

But even Roy Greenslade in the Guardian, who has been vocal in his criticism of press abuse, came out against the idea of regulation via a Royal Charter, and is therefore opposed to the PRP and Impress. He says, of section 40:

Whether you see this as a carrot to lure publishers into an approved regulator or a stick to compel them to do so, it is a form of blackmail and, by extension, inimical to freedom of expression.

The Guardian isn’t a member of IPSO and has no intention of joining it, as Greenslade has made clear. Moreover, it was the Guardian reporter, Nick Davies who first investigated phone hacking by the News of the World. So the fundamental objection seems to be (and no doubt this will be expressed in answer to the consultation) the draconian costs-shifting provision of section 40.

In the face of this virtually unanimous chorus of objection, with a government mired in uncertainty over Brexit and struggling to demonstrate competence in other areas, it seems extremely unlikely that it will trigger the nuclear option of section 40 and further alienate the tabloid press. Nor, given the current financial climate, and the quagmire into which the Child Sex Abuse inquiry is currently floundering, is there likely to much appetite for further inquiry hearings. So Leveson 2 is, very probably, either going to be cancelled altogether, or placed into further suspended animation (though it is hard to see on what basis). At any rate, the likelihood of its getting a green light at this stage is vanishingly small.