Three-D Issue 27: Press regulation: the Government’s consultation and Impress

On October 25th this year, after months of painstaking preparation and consultation on the part of its staff and Board (of which I am a member), Impress was recognized by the Press Recognition Panel (PRP) as an independent regulator under the terms of the Royal Charter on the regulation of the press (30 October 2013). Colleagues may remember that this Charter had been agreed by all parties in Parliament in 2013 in order to implement the recommendations of the report resulting from the 15-month long Leveson Inquiry into press abuses.

Three years later, the PRP’s recognition of Impress has been a wake-up call to what was starting to look like a moribund process. However, instead of welcoming this as a positive outcome of its own Charter recommendations, the Government seems to have been persuaded by press protests at Impress’s recognition, into launching a consultation, in order to delay Leveson’s implementation. Daisy Goodwin of the press victims’ organization, Hacked Off, pointed out in her evidence to the DCMS Select Committee on December 6th, that the Secretary of State’s action here is an example of what all parties, agree shouldn’t happen: it is direct Government interference in matters of press regulation.

As long as there was no recognized regulator, the Leveson recommendations of 2012, (drawn up in conjunction with the major press groups, despite their protestations of non-involvement now), could rest safely in the long grass. Now that recognition of Impress has been achieved, the long grass is no longer an option. Section 40 of the Crime and Courts Act 2013, which provides incentives for newspapers to belong to a recognized regulator, now need to be commenced because a recognized regulator exists. Section 40 requires newspapers to agree to low-cost arbitration when a member of the public makes a complaint about them and, if arbitration doesn’t work, the complainer may proceed to legal action. Legal action is expensive, and thus beyond the reach of most ordinary people and the arbitration requirement is designed to correct this. If a case proceeds to court, so long as the newspaper is a member of a recognized regulator, it can reclaim its legal costs. But if the newspaper isn’t a member of a recognized regulator, it will be liable to all costs even if it wins the case. This ‘unfair’ costs provision is being furiously opposed by the mainstream media as a threat to press freedom. (See for example Paul Dacre, Editor of the Daily Mail, quoted in Press Gazette, December 1 2016) What Dacre doesn’t mention is first, this ‘unfair’ costs provision is only possible if arbitration hasn’t taken place. And secondly, the judge still has discretion not to award costs against the newspaper if this seems appropriate (see Professor Brian Cathcart’s more detailed refutation of the press’s objections).

Parallel to Impress’s long-running recognition process, the pressure to start Leveson Part 2, about the too-close relationships between the police, the press and politicians, revealed in Leveson Part 1, has been building up now that criminal trials are over. This received new impetus by the recent conviction in October this year, of Mazher Mahmoud, the ‘Fake Sheikh’, employed by News UK as ‘a wholly unregulated police force’ in the words of a lawyer in the case. Whether Leveson 2 should be commenced has also been tagged onto the consultation. What is puzzling is why the Government appears to be undermining its very own legislation– agreed by all parties – to bring the Leveson requirements into force. Why is it offering different options such as suggesting Section 40 should provide arbitration but shouldn’t require the costs penalty for publishers who refuse to arbitrate? What lies behind the Government’s request for evidence/cost of possible impact? Does this suggest the government believes that some of the arguments about hypothetical impact – such as Dacre’s threat that the free press will be ‘manacled’ – have been exaggerated? What will the Government do if, as a result of the consultation, they neither put Section 40 into operation nor proceed with Leveson Part 2?

Whatever they do, or don’t do, the lack of public trust in journalism – as evidenced by a recent YouGov poll – could hardly be lower, at 18%, and that is not good news for our journalistic colleagues nor for our young trainee student journalists. It should also be seen as a real problem for government, a problem for which, we suggest, the remedy is in their own hands: commence Section 40 and initiate Leveson Part 2.

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