‘Press regulation three ways’ sounds a bit like a dish served on MasterChef but that’s what is now on the menu for publishers in the wake of the 2011 phone hacking scandal and Leveson Inquiry.
Publishers can choose self-regulation via the industry’s Independent Press Standards Organisation (IPSO), which succeeded the heavily criticised Press Complaints Commission.
Or they can choose to be regulated by IMPRESS, the only regulator approved by the Press Recognition Panel set up under a Royal Charter by Parliament. Alternatively, publishers can pass on the whole thing and decide not to be regulated by anyone.
By far the majority of national and local newspapers are covered by IPSO; a small number of titles and websites come under IMPRESS; while a number of high profile newspapers and magazines, including The Guardian, Financial Times and Private Eye, are among those newspapers and magazines which have chosen not to be regulated at all.
Meanwhile, the government has been consulting over two key issues: implementation of the highly contentious Section 40 of the Crime and Courts Act 2013 on costs in libel cases and whether to go-ahead with Part 2 of the Leveson Inquiry intended to examine wrongdoing in the relations between the press and the police.
Whilst Section 40 has been enacted by Parliament, it has not been commenced. Once commenced in media libel cases, it would mean there is a presumption that newspapers which are members of a recognised self-regulator, like IMPRESS, would be exempt from paying their opponents’ legal costs, even if they lost a court case, and a presumption that newspapers outside a recognised self-regulator would pay their own and their opponents’ legal costs, even if they won a court case.
This has caused outrage across the national and local press and among freedom of speech campaigners like Index on Censorship.
Following the Leveson Inquiry Part 1, there was cross-party agreement in Parliament for a new mechanism which MPs claimed would support voluntary press self-regulation enshrined in a Royal Charter. This established the Press Recognition Panel, for approving press self-regulators. Last year, IMPRESS became the first and only recognised self-regulator under the new system. It has around 50 members compared to more than 2,500 members of IPSO. Many publishers have strongly resisted the Press Recognition Panel claiming it is a form of state control.
The government’s options include:
• Keep Section 40 under review and give IPSO a chance to prove itself.
• Fully commence Section 40 to maximise incentives for publishers to sign up to a recognised self-regulator like IMPRESS.
• Repeal Section 40 on the basis the incentive is no longer required or of practical benefit.
• Partially commence section 40 so that members of recognised regulators like IMPRESS would be protected from the adverse costs arising from legal action brought by powerful claimants. Those outside a recognised self-regulator would not share those benefits.
It would be difficult to exaggerate the anger over Section 40 within the press. The strong reaction has no doubt been forged by the experience of journalists and publishers who have been on the receiving end of legal actions which can be the most time consuming, expensive, frustrating and hateful experience they ever have to endure.
Even dealing with legal letters and settling on an agreed correction and apology can cost thousands of pounds. The scars are too deep for most of the press, used to being threatened and bullied by those with the resources to hire expensive lawyers, to accept a future in which they could win a libel case and still face paying huge costs.
It’s hard to imagine a post Brexit government wanting to antagonise its supporters in the press by implementing Section 40. The Sun, in a leader noting that IMPRESS receives financial backing from Max Mosley, said: "Britain’s press freedom has never been in greater peril than it is today. A state-approved regulator, run by tabloid-haters and bankrolled by an odious tycoon, continues its campaign to muzzle the printed press. Investigative journalism is threatened by a perverse law that would force newspapers to pay the costs of anyone who takes them to court, win or lose.”
The Mail has a similar view of IMPRESS: “Even if IMPRESS had impeccably fair-minded credentials, this paper would refuse to join it, on the principle that it is wrong for the press to submit to state regulation. As it is, the very thought of surrender to such a creepy body is unthinkable. This is why no mainstream newspaper, of right or left, has signed up to IMPRESS.”
The Guardian and Financial Times also came out strongly against Section 40. The Guardian said in a leader: "A free press is a constitutional necessity, not an ornamental timepiece. There is no other option but to repeal Section 40. The Guardian believes that the independence of the press is best served by self - not state - regulation."
The Financial Times in its response to Section 40 stated: "The position of the FT is clear: Section 40 is not fit to be commenced” and argued: “Keeping Section 40 in place, but un-commenced, appears to give this – and every subsequent – secretary of state unacceptable leverage with regard to the newspaper industry. It is, for the press, a legislative Sword of Damocles."
Nottingham Post editor Mike Sassi, spoke for many local newspaper editors when he stated: "If Section 40 were to become law, complainants would have a huge financial incentive to pursue us, knowing that even if they lose, we have to pay their costs. The number of complaints would inevitably increase." Other critics of Section 40 included Private Eye editor Ian Hislop and investigative journalists like Tom Bower and Andrew Norfolk.
Need for compromise
If the government wants to avoid an all-out war with newspaper and magazine publishers over Section 40, it will have to find a compromise. In February, the Culture, Media and Sport Committee recommended the press should be given a year to make IPSO fully compliant with the Leveson report. Chair of the committee Damian Collins said: “If the vast majority of newspapers and magazines continue to refuse, on principle, to accept regulation under the terms of the Royal Charter, then the government should create an alternative path, that would allow IPSO to become established as the preferred body to take responsibility for the self-regulation of the press.”
The committee said for this to be achieved, IPSO needed to make substantial progress in establishing a low-cost arbitration scheme to consider complaints against the press, to increase the resources at its disposal to launch investigations, and to fund a campaign to inform the public about how and where to make complaints to IPSO.
Collins suggested: “If IPSO can make the necessary reforms to become compliant with the spirt of the Leveson recommendations, then the government should repeal the provisions within Section 40 that relate to the awarding of costs in court cases taken up against the press.”
It is estimated that legal wrangles and judicial reviews over various aspects of proposed press regulation could drag on for years. Good news, perhaps for lawyers, but not for journalists and publishers facing more immediate problems.
Among those are the fight for survival of the local press where it is predicted high libel costs via Section 40 could force titles to close; fears the Espionage Act will stop whistleblowers talking to journalists; and the continuing advertising grab by the likes of Google and Facebook.
The Mail in an editorial summed up the growing anger of traditional publishers at the unregulated internet giants like this: "How much longer can the arrogant, filth-spreading, fake newsmongering, tax-dodging, small firm-destroying, terror-abetting internet giants remain above the law?... Yet any newspaper that published the kind of filth freely available on the internet would instantly be hauled before the courts or the independent regulator, IPSO, which has the power to impose huge fines... they suck revenue from the responsible, law-abiding media – driving many local newspapers to the wall, thereby leaving court cases and council decisions increasingly unreported."
The tone set by President Trump insulting the US press as purveyors of “fake news”, and describing journalists as “among the most dishonest human beings on Earth”, plus allegations that David Cameron tried to get Paul Dacre sacked from the Daily Mail have reinforced those who believe it’s dangerous for politicians to have any direct control over the press.
Index on Censorship CEO Jodie Ginsberg, speaking at a Press Club debate on “press freedom under threat”, at Stationers’ Hall in London earlier this year, compared the continuing battles over press legislation as being like the amusement arcade game whack-a-mole. “Just when you think you’ve dealt with some press legislation something else pops up.” It was in a speech at Stationers’ Hall in 1989 that Media Secretary David Mellor warned the press was “drinking in the last chance saloon” and plenty of moles have popped up since then.
Critics have accused the press of a hysterical reaction to Section 40 and refusing to embrace the benefits of cheap arbitration offered by an approved regulator. So far, the carrots and sticks proposed to persuade the majority of publishers to back a Press Recognition Panel approved regulator have failed.
There is perhaps a deeper reason for this failure rather than the traditional battle of defending self-regulation of the press against any kind of state intervention. Many journalists and publishers just don’t believe they should be subjected to a collective punishment beating because of a few rogue phone hacking tabloid journalists who have already been dealt with by the criminal courts.
Since going to press with this article, the Conservatives have pledged to “Repeal Section 40 of the Crime and Courts Act 2014” in their election manifesto, published on 18 May, and to scrap Leveson Part 2. The Conservative manifesto says: “Given the comprehensive nature of the first stage of the Leveson Inquiry and given the lengthy investigations by the police and Crown Prosecution Service into alleged wrongdoing, we will not proceed with the second stage of the Leveson Inquiry into the culture, practices and ethics of the press.” Shows intense lobbying by publishers has paid off, writes Jon Slattery.