If Leveson is a slippery slope, I’m a teapot

It’s funny, but before two weeks ago, I can’t remember the last time I heard the phrases “slippery slope” or “crossing the Rubicon”. In the run up to, and immediately after, the publication of the Leveson report we have heard of little else. – That and “underpinning”, another phrase not otherwise in general use.

Hopefully, the weekend has allowed people to actually read some of Leveson’s report and we may now hear less of slopes slippery and rivers Rubicon.

In the report, Sir Brian Leveson is at pains to point out, numerous times, that he wants “voluntary independent self-regulation”.

On page 1780, Volume 4, he writes that:

the ideal outcome from my perspective is a satisfactory self organised but independent regulatory body, established by the industry, that is able to secure the voluntary support and membership of the entire industry and thus able to command the support of the public.

As I read through parts of the report, I lost count of the times that he repeats and emphasises that he wants the regulation to be voluntary.

In the executive summary (paragraph 70 onwards), Sir Brian is very clear indeed that the main reason he proposes some legislation is so that the courts can recognise that a news outlet is part of a “satisfactory…regulatory body” in order that a system of incentives can operate. If a paper is a member of such a body, their damages may be less if they lose a court case for, as an example, defamation.

So you can see that Leveson is bending over backwards to make the regulatory system voluntary. Indeed, his proposals elevate reasonableness to an art form.

Crucially, Leveson also specifically states (in paragraph 71) that:

the legislation would not establish a body to regulate the press: it would be up to the press to come forward with their own body that meets the criteria laid down.

I have bolded that quote. I would like it to be embossed on the forehead of every “slippery slope” merchant currently doing the rounds of the media. The proposed legislation does not set up a regulatory body. It merely sets up facilitative legislation for an independent voluntary press industry-organised body or bodies to exist and function satisfactorily.

On page 1780 of volume 4, Sir Brian tackles the “slippery slope” argument head on.

Firstly he points out that the British parliament is anything but “itching” to control the press. Indeed, they have run a million miles at the speed of Usain Bolt from any opportunity to regulate the press over the last fifty years (my paraphrasing).

Secondly, he rubbishes the idea that it is easier to amend an existing Act than to bring in a new one:

Any statute only gives Government, or anyone else, the powers that are stated on the face of the legislation. If a statute simply provides for a recognition process for a press regulatory body then it can only be used for that purpose. Any attempt to introduce further legislation of the press would require a new Act of Parliament which make new provisions or amend an existing Act, but it would need to be a new Act, and go through exactly the same processes that an Act establishing a recognition process would need to do today.

Thirdly, and crucially, he proposes that any bill would:

…place an explicit duty on the Government to protect the freedom of the press.

That is key, as it explicitly impedes any “slippery slope”. Any government which wishes to control the press in future, would, first, have to overturn this law. That would seem to be an almost insuperable challenge, once it is in place.

The legislation proposed by Leveson is the lightest of light touches, being legislation to:

…identify the legitimate requirements to be met by an independent regulator organised by the press, and to provide for a process of recognition and review of whether those requirements are and continue to be met…(and to) place an explicit duty on the Government to uphold and protect the freedom of the press.

We really do need to drop this silly fetish for avoiding all legislation which has even the lightest of impacts on the press.

For starters, it is completely illusory that the press currently operates in a legal vacuum. There is plenty of legislation which applies to the press already. Some of it started with King James I, during whose reign the first defamation precedents in common law started to take shape. We crossed the Rubicon in about 1610. Indeed, writing in the New Statesman, David Allen Green identifies over 85 statutes which can be applicable to a working journalist.

There are plenty of international examples where countries have passed legislation to enshrine the rights and responsibilities of the press. Far from weakening press freedom, such laws have maintained and even enhanced the reputation of those countries as free press exemplars.

Leveson mentions the example of Ireland (number 15 in the Press Freedom Index - against the UK which is 28th).

We should also look at Finland, who are joint first in the World Press Freedom Index. Are they a legislative vacuum as far as laws concerning the press go? Far from it.

As far back as nearly a century ago in 1919, the Finns passed a law which gave anyone who claimed that material printed about her or him was incorrect or offensive the right to demand a correction.

In 2004, a Finnish law was passed called the “Act on the Exercise of Freedom of Expression in the Mass Media” which stipulated, amongst other things, that publications must have a designated editor and must allow a right of reply/right to correction.

(Those Finnish laws also combined elements to enshrine the rights of the press.)

It is only in the little UK bubble created by some vested media interests that any legislation whatsoever, however “light touch”, concerning the press is supposed to automatically send us careering headlong at 90 mph towards inevitably joining North Korea and Eritrea as international pariahs languishing at rock bottom of the Press Freedom Index. It is ridiculous (even in its unexaggerated form). All of the top ten countries in the Press Freedom Index have rights and responsibilities of the press written into their legal system, with the arguable exception of Iceland, who have recently passed a law which makes them “journalist heaven”.

There has been much (arguably disproportionate) hoo-ha about the role of Ofcom in all this. (Ian Hislop makes some very valid points about this aspect.) Leveson mentions Ofcom with respect to two roles:

1. As a recognition body to verify that any regulatory body meets given standards.

In fact, Leveson leaves open the alternative for this recognition body to not be Ofcom, but an independent “Recognition Commission” or “Commissioner” supported by Ofcom’s officials, appointed by a process independent of the press, Government and legislature. Leveson mentions the Commissioner for Public Appointments and the Chairman of the Judicial Appointments Commission as possibilities for this role.

2. As a “backstop” regulator.

However, Leveson again leaves open the possibility that this is not Ofcom, and gives several alternatives to having a backstop regulator such as “do nothing”, “naming and shaming” or the establishment of a “complainants’ champion”. He also discusses the possibility of extending the role of the Information Commissioner or setting up a separate commissioner.

By the way, Ofcom is not the devil incarnate, as some press elements would want you to believe. It should be remembered that the people who finally, albeit posthumously, shopped Jimmy Savile were regulated by Ofcom – not our “raucous press” – but dear old ITV.

There has been a remarkable amount of spin about the view of Liberty and its director Shami Chakrabarti. Some of it has been misleading. You can read Liberty’s full statement on Leveson, written by Shami Chakrabarti here. Liberty support the main objective of the legislation which Leveson proposes, namely the system of incentives mentioned above. Indeed their website waxes lyrical about Leveson’s proposals at considerable length. The one thing they object to is a government-appointed “back stop” regulator alluded to above. Presumably, they would support one of the alternatives suggested by Leveson such as “do nothing”, “naming and shaming”, a “complainants’ champion” or an independently-appointed commissioner. So, by going with one of the “back stop” options suggested by Leveson (other than the use of Ofcom), I assume Liberty would be happy with the whole Leveson package, since the single objection they raise is to a government-appointed “back stop” regulator.

Some have said that Leveson’s proposals don’t address the internet. They do actually, and Liberty single out that aspect of Leveson’s report for praise.

Some have asked: What does Leveson propose if media outlets don’t voluntarily join the self-regulatory body or bodies? The back stop options outlined above answer that query. So, if some media outlets don’t join the self-regulatory body there are the options of Leveson’s preference of Ofcom, “do nothing”, “name and shame”, the Complainants’ Champion or an independent commission or commissioner. Leveson devotes the whole of Chapter 8 of Volume 4 to “Alternatives”.

Finally, don’t take my word for all this. Nick Davies is the Guardian journalist responsible for uncovering the News of the World hacking affair. Last Thursday he wrote in strong support of Leveson’s proposals:

…From a reporter’s point of view, there is no obvious problem with the core of Leveson’s report, his system of “independent self-regulation”.

…There is a nightmare here, but it is for the old guard of Fleet Street. To lose control of the regulator is to lose their licence to do exactly as they please.

…the real problem, of course, is in the power of the beast. This debate is not about to be settled with facts and reasoned argument. It will be conducted under the same old rules – of falsehood, distortion and bullying. Will any government stand up to it? That’s where the real nightmare may lie.

* Paul Walter is a Liberal Democrat activist in Newbury and West Berkshire. He is Photo Editor of Liberal Democrat Voice and blogs at Liberal Burblings.

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21 Comments

  • “So, by going with one of the “back stop” options suggested by Leveson (other than the use of Ofcom), I assume Liberty would be happy with the whole Leveson package, since the single objection they raise is to a government-appointed “back stop” regulator.”

    What Liberty is opposed to is “Any possible alternative of compulsory regulation, either for all newspapers or those who will not join the voluntary scheme”. That is, either if the voluntary regulator is found (by Ofcom or whoever) not to be fulfilling its role satisfactorily, or if individual newspapers do not participate. (Liberty also has concerns about the establishment of a ‘recognition’ body, but will go along with legislation for that if necessary.)

    As you say, Lord Leveson doesn’t make a specific recommendation about what should happen in those circumstances, but he does appear to think some form of compulsion will be necessary, because he stresses that it’s vital the system should include all significant news publishers.

    That is the crucial question – a voluntary system or a compulsory one? Of course everyone would prefer all news publishers to participate voluntarily, but what happens if they don’t?

  • Bill Miller 3rd Dec '12 - 10:46am

    Paul, I thought you were a teapot, but then I read your article.

  • Paul Walter 3rd Dec '12 - 11:17am

    Chris:
    “Of course everyone would prefer all news publishers to participate voluntarily, but what happens if they don’t?”

    Sorry Chris, I thought I had answered that with this paragraph:

    “Some have asked: What does Leveson propose if media outlets don’t voluntarily join the self-regulatory body or bodies? The back stop options outlined above answer that query. So, if some media outlets don’t join the self-regulatory body there are the options of Leveson’s preference of Ofcom, “do nothing”, “name and shame”, the Complainants’ Champion or an independent commission or commissioner. Leveson devotes the whole of Chapter 8 of Volume 4 to “Alternatives”.”

    In a simple sentence, if they don’t join the regulator, one good option would be set up a “Complainants’ Champion”. That sounds a very good option to me.

  • “Sorry Chris, I thought I had answered that with this paragraph”

    But that’s the whole point. “There are several alternatives” isn’t an answer to the question of what’s going to be done. What I’m saying is the choice between those alternatives (including the alternative of no statutory regulation) is the crucial issue.

  • Paul Walter 3rd Dec '12 - 12:35pm

    Ok thanks

  • It isn’t just Ireland . Look at Denmark’s rankings. http://www.worldaudit.org/press.htm

    Denmark has a sensible system in place and it’s the sort of modern ,egalitarian liberal democracy Lib Dem voters can only dream of Britain one day becoming .

  • Good article Paul.

    Models to spurn: North Korea, Burma, Saudi Arabia, Equatorial Guinea, Iran, Eritrea, Cuba, Uzbekistan, Syria and Belarus.

    Models of best practice – Finland, Norway, Estonia, Netherlands, Austria.

    Seems clear enough to me.

    Leveson specificaly referred to the Irish sysyem as a model to build on. He argues for a new press board with a truly impartial chair independent of the press and of politics, and suggests that the chair and other members of this board be selected by an independent appointments committee. This has been the case in Ireland since the Press Council was established in 2007. While voluntary and independent, the new system in Britain should be anchored in legislation and include some means of certifying that in its make-up and operation, the press board conforms with the requirements of the legislation.He advocates strengthening the Irish model for the UK in three areas:

    1. Leveson recommends that a minority of the press board should include “people with experience of the industry who may include former editors and senior or academic journalists” but he recommends this should not include any serving editors.The Irish Press Council currently includes some serving editors of national newpapers.

    2. The Irish Press Council deals only with individual cases but has no power “to conduct on its own initiative investigations, and has no specific remit to tackle serious or systemic problems”. Leveson recommends that the UK press board should allow people other than those directly affected to make complaints. He also recommends that the board have authority to examine issues on its own initiative.

    3. The only sanction available to the Irish Press Council is to require errant publications to prominently publish its decisions, Leveson recommends that the UK press board have the power to impose fines of up to a maximum of £1 million or 1 per cent of the publication’s turnover, whichever is less.

    As you note in the article “there are plenty of international examples where countries have passed legislation to enshrine the rights and responsibilities of the press. Far from weakening press freedom, such laws have maintained and even enhanced the reputation of those countries as free press exemplars.” Let’s get on with it.

  • Paul: if you don’t hear the word “underpinning” very often, alls I can say is you’re not very active in the sewing community…

  • Richard Dean 3rd Dec '12 - 7:17pm

    … nor indeed in the civil engineering community, where underpinning refers to the processes of strengthening or stabilizing the foundations of buildings and other structures. http://en.wikipedia.org/wiki/Underpinning

  • There are problems with Leveson which I won’t go in to but I am confused by his penalty cap. Why £1m or 1% turnover which ever is less. So what he is saying is that the fines should be up to 1% of turn over for small publications but less than 1% for large ones.

    Not sure I think that is good for the competition if people are concerned about plurality in the newspaper market.

  • “While voluntary and independent, the new system in Britain should be anchored in legislation and include some means of certifying that in its make-up and operation, the press board conforms with the requirements of the legislation.He advocates strengthening the Irish model for the UK in three areas:”
    [my emphasis]

    Those three areas not involving any dilution of the principle that participation is voluntary.

    Paul Walter’s preferred ‘backstop’ option of a Complainants’ Champion apparently involves only support for litigants making use of the existing laws, and therefore doesn’t involve any additional compulsory regulation.

    So is it possible (holds breath) that there is a consensus here that there should be no additional compulsory regulation of the press – just as Liberty says?

  • chocolate teapots are what worry me :-)

  • many thanks for the helpful clarification Paul. Seems that the press are fighting for their freedom to bully the weak.

  • “Not an absolute censor but one which will operate indirectly through offering “incentives” to those who submit to it., incidentally taking away the rights of individuals to full damages in defamation cases.”

    By “full”, presumably you mean “exemplary” (because Leveson recommends that the courts should take into account membership of the new regulation body in deciding whether to award exemplary damages). Apart from exemplary damages, I don’t think Leveson is recommending any reduction of damages available through the courts. In some respects, I think he is recommending an increase.

  • “There are, of course, already legal restrictions on what the press can publish. Some are preventative (D-notices) but most are reactive.”

    DA notices are not legal restrictions on what the press can publish. The system is voluntary:
    http://www.dnotice.org.uk/

  • Paul Walter 5th Dec '12 - 8:40pm

    Tony Harms: “What is being proposed here is the establishment of a censor. Not an absolute censor but one which will operate indirectly through offering “incentives” to those who submit to it., incidentally taking away the rights of individuals to full damages in defamation cases. The effect is likely to be a deadening hand on the media who will also probably be unable to fully report on cases which are already public in foreign media or on the internet.”

    Tony, this comment outlines a scenario which is not what Leveson is proposing. He is proposing an independent regulator set up by the press themselves. He is very clear indeed that this regulator will not have any powers to stop articles before they are published. So it is not by any manner of a means a “censor”. As this will be a self-regulator organised by the press, the “hand” in question will be that of the press themsleves, so it is unlikely to be “deadening”.

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