Life after Leveson: responsible press or regulatory headache?

Will the media come to regret its reaction to the Royal Charter on press regulation?

At approximately 2:30am on the morning of 18 March, a deal was finally struck between the three main British political parties on how to respond to the Leveson Inquiry’s recommendations, following its comprehensive review into the British press, its ethics, culture and practice. This deal can fairly be described as nothing short of historic, marking the first time that elected politicians in Britain have resolved to compel the press into implementing a meaningful form of self-regulation.

Leading up to the deal, political wrangling had been going on for weeks. Debate was focused on the form of a ‘recognition body’ designed to assess the competency of the press’s own independent self-regulator. Also in question were the powers of the self-regulator which the recognition body would uphold. The Tory position was that Royal Charter should be used to incorporate a recognition body, without the need for any Parliamentary approval or legislation. They also broadly favoured weakened powers for the self-regulator relative to what Leveson recommended.

Over that weekend Labour, Liberal Democrats, Northern Irish and Tory rebel MPs all indicated they were going to oppose this Tory proposal and force legislation through implementing a more faithful version of Leveson. Against this background, the Tories made concessions and a deal was struck. It has been agreed that the Royal Charter recognition body is to be underpinned by legislation requiring a 2/3 majority vote in Parliament to alter it. Further, any regulator will both have the power to ‘direct’ newspaper apologies ensuring apologies aren’t hidden away, the press will not have a veto over appointments made to the self-regulator, protecting its independence, and, crucially, exemplary damages will be recoverable in media litigation against press bodies that don’t join the self-regulator.

Since the deal was struck, the press’s reaction has been one of righteous indignation. Numerous and vociferous criticisms have been levelled: the use of statute is a disaster for freedom of expression; the deal will only protect the rich and the powerful; it was unfair that lobby group Hacked Off were present at the meeting when the deal was struck – the list is long but largely smells of self-interest or sour grapes.

What has happened is most remarkable in that measures broadly opposed by easily the most powerful lobby in Britain, the British press, have nonetheless been implemented in the public interest, with the objective of creating a culture of responsibility and rule of law in the shadier of Britain’s newsrooms. Consistent polling has demonstrated popular support for these measures, something that has gone largely unreported in the British media.

Professions up and down the land are regulated by statute to ensure that they maintain the highest of standards in the public interest. Some of the healthiest presses in the world have explicit press legislation, not least Finland and Denmark. Yet the press, clothing itself in false modesty and protesting that it is not a profession but a trade, considers conversely that it should not be bothered with these troublesome measures. With this bee in its bonnet, the press has been refusing point blank to entertain the concept of statutory backed regulation, opining effectively that the moment this were to come into place, politicians would be red-lining its copy and Parliament drafting its headlines.

Lord Justice Leveson’s proposals explicitly sought to guarantee press freedom through statute. His report posited, “What would the legislation achieve?” It would enshrine, for the first time, a legal duty on the Government to protect the freedom of the press. Ironically, in trying to avoid legislation, the deal that has been struck has left out this explicit duty on government to protect freedom of expression. By the law of unintended consequences, the Conservatives and the majority of the press have lobbied and wrangled themselves into a deal that is arguably less favourable to the press than if they had accepted Lord Justice Leveson’s proposals wholesale, and recognised that having a press law in itself will not turn Britain into North Korea. Hacked Off’s own proposed draft bill contained just such a section enshrining freedom of the press.

It is quite possible that the press will continue to boycott the Charter-backed regulator deal, and so it is at least possible that matters might develop in unforeseen ways in the coming weeks. Nevertheless, whatever the outcome from here, it is hard to envisage a future where those in the press who break the law, harass, bully and misrepresent, are not more easily held to account than in the past, and not by just those with the money and the time to pursue litigation. Whether the new regulatory framework will prevent a repetition of the appalling behaviour suffered by the Dowler family, the McCanns and Christopher Jefferies (to name but a few), only time will tell.

The proposed legislation provides that those press institutions who do not sign up to the Royal Charter-backed regulator, and who are found wanting in their reporting and responsibilities, can be ordered to pay what might prove to be significant exemplary damages when unsuccessful in media litigation. The press may well have been binge-drinking in the last chance saloon of self-regulation, but when it wakes up and realises the potential impact of its refusal to agree to Lord Justice Leveson’s proposals, it may find itself, post-Leveson, with one almighty headache. And for us, the public, whose private lives and reputations are in the hands of both the politicians and the press, the future might be a little rosier.

Amber Melville-Brown is a partner and Rupert Cowper-Coles a solicitor at Withers