While the press regulator, the Press Complaints Commission (“PCC”) is still in place for now, its days are numbered. It is widely accepted that the PCC, which Ed Miliband reportedly described as a “toothless poodle”, is not effective and reform is needed. In the wake of the phone hacking scandal, Lord Justice Leveson scrutinised the culture, practices and ethics of the press. His recommendations were published roughly twelve months ago. The key debate currently focusses on how Lord Justice Leveson’s recommendations will be effectively implemented.

First, by way of reminder, Lord Justice Leveson’s recommendations include the following (this list is not exhaustive):

  • the continued self-regulation of the press but by a new press regulator (not the PCC);
  • Ofcom[1] should have a role certifying that the new regulator satisfies certain requirements;
  • the regulator should be backed by legislation (i.e. statutory underpinning) - this is not the same as statutory regulation of the press; and
  • an arbitration dispute resolution mechanism should be introduced to deal with civil legal claims[2].

In this article, we look briefly at two competing systems for regulating the press which have been proposed in light of Lord Justice Leveson’s recommendations: the cross-party Royal Charter on press regulation and the Independent Press Standards Organisation (“IPSO”).

The Royal Charter on press regulation

After Lord Justice Leveson’s recommendations were published, there were concerns that any form of statutory control (even statutory underpinning rather than direct statutory regulation of the press) would damage free speech.

The Royal Charter regime was developed as a compromise solution[3]. However, politicians and the press could not agree on the terms of the Royal Charter. Part of the media industry therefore prepared its own version of the Royal Charter, which was rejected by the Privy Council. A version of the Royal Charter which had been agreed by the main political parties was adopted by the Privy Council on 30 October, despite a last minute attempt by the Press Standards Board of Finance (“PressBoF”)[4] to obtain an interim injunction hours before the Privy Council decision.

The Royal Charter does not propose a system of direct regulation of the press by politicians. Instead, it proposes maintaining a system in which:

  • the press would set up an independent regulator (or regulators);
  • a separate Recognition Panel would be established under the Charter; and
  • the regulator (or regulators) established by the press can apply for recognition from the Panel (which recognition would be reviewed at set intervals or on an ad hoc basis and could be withdrawn).

The Royal Charter sets out a list of criteria for the Panel to consider when assessing whether or not to recognise a regulator, for example: having a whistleblowing hotline; operating an adequate and speedy complaints handling mechanism; having the power to impose sanctions (up to a maximum of £1,000,000); and provision of an arbitral process for civil claims.

The success of the system proposed by the Royal Charter depends largely on securing wide participation from the media industry.

However as explained below, IPSO looks set to operate independently of the Royal Charter regime (so that publishers effectively face a choice between supporting IPSO or the Royal Charter system). At present therefore, there is a real risk that a large proportion of the industry will choose to operate outside the Royal Charter framework, leaving the Royal Charter without a meaningful role to play in practice.

If that is the case, the Recognition Panel would have to report to Parliament within a year (explaining that either: (a) the press has not established a regulator which has been recognised by the Panel; or (b) the Royal Charter regime does not cover all significant relevant publishers).

The Independent Press Standards Organisation

1111A number of influential newspaper groups (News UK, Associated Newspapers, Telegraph Media Group and Trinity Mirror) announced IPSO as their proposed replacement for the PCC.

IPSO is described on its website as “the new, tough, independent organisation being established to regulate the UK’s newspapers and magazines[5]. The basis of IPSO’s power to consider complaints, investigate issues and impose fines would be in a contract (the Scheme Membership Agreement) between IPSO and each member publisher[6].

It seems likely that once it is up and running, IPSO will not seek recognition from the Recognition Panel established by the Royal Charter. One of the reasons for this is that IPSO’s members could give notice to cancel their membership if IPSO applies for recognition (there is an express provision to that effect in the Scheme Membership Agreement).

Further, based on the documents available on the IPSO website, it seems unlikely that IPSO would qualify for recognition even if it did apply to the Recognition Panel. For example, one of the recognition criteria set out in Schedule 3 to the Royal Charter provides that the Board of a regulator “should” provide an arbitral process for civil legal claims, whereas the Scheme Membership Agreement states that IPSO “may” establish an arbitration service provided it has first carried out due consideration and consultation and carried out a pilot scheme. It is unclear at present whether IPSO will establish an arbitration service or not.

The reported aim of setting up IPSO is to show, in time, that there is a strong and effective regulator in place and there is no need for the Royal Charter regime (or further intervention by politicians). However, there are already questions being raised about whether IPSO can effectively regulate the industry and implement Lord Justice Leveson’s recommendations. The Media Standards Trust recently published an interesting report on the extent to which IPSO delivers the key elements of Lord Justice Leveson’s recommendations[7]. According to the Media Standards Trust, IPSO fails to satisfy 20 out of 38 recommendations including those concerning independence from the industry and access to justice. Further, like the Royal Charter, IPSO needs wide participation from the industry to show that it is effective. However, IPSO does not yet enjoy universal support from the press industry - there are a number of newspapers that have not yet announced their support for IPSO, including the Guardian and the Financial Times. Also, IMPRESS (the Independent Monitor for the Press) has recently published its prospectus to regulate the press in accordance with Lord Justice Leveson’s recommendations (as a rival to IPSO)[8]. IMPRESS is supported by the former Sunday Times editor Sir Harold Evans (among others).

Press freedom

One of the key concerns which remains about the Royal Charter system is that it could undermine the freedom and independence of the press.

The BBC is another body established by Royal Charter. It provides an example of a Royal Charter regime in the context of broadcasting being used to support, rather than undermine, press freedom. The BBC has been able to use its Royal Charter to maintain its independence. Indeed, despite intense media scrutiny of the BBC’s governance in the past year, there have been no political attempts to amend the BBC’s Charter.

However, there is no guarantee that there would be the same political reticence to amend the press regulation Royal Charter. A potentially important difference between the BBC’s Charter and the Royal Charter on press regulation is that the latter can be amended by a 2/3 majority in both Houses of Parliament[9]. Further, amendments could in theory be put forward at any time. Conversely, the current BBC Charter provides for a period of incorporation up to 31 December 2016 and does not prescribe for interim amendments to be made. It would be very surprising if the BBC’s Charter were amended other than as a result of negotiations leading up to renewal of the Charter in 2016.

Nevertheless it will not be straightforward to obtain any amendment to the press regulation Charter; this would require cross-party support in both Houses, would likely be subject to intense media scrutiny and could result in a regulator withdrawing from the Royal Charter regime. Politicians should be aware that such withdrawal could undermine the effectiveness of the overall system. This should help to keep any political amendments within reasonable limits, though time will tell.

Incentives to sign up to the Royal Charter system

It is not mandatory for IPSO or any other regulator set up by the press to seek recognition under the Royal Charter regime (and as noted above, it appears that IPSO does not intend to). However, one of the key detrimental effects of remaining outside the Royal Charter regime is the potential costs and exemplary damages which may be awarded against the press in court cases.

The Crime and Courts Act 2013 contains provisions which increase the likelihood that certain publishers of news-related material could have costs and exemplary damages awarded against them in defamation, breach of confidence, misuse of private information and other claims[10] if they are not a member of an “approved regulator” within the Royal Charter framework (i.e. a regulator that has obtained recognition).

There has been speculation that newspapers could take legal action to avoid having to pay such costs. John Whittingdale MP described this as an inevitable “car crash” over press regulation. The Crime and Courts Act has already been debated by both Houses of Parliament and even if a court did declare its cost provisions to be incompatible with article 10 of the ECHR (the right to freedom of expression), it is perfectly conceivable that it could remain on the statue books unamended.

Given the current strength of opposition to the Royal Charter regime (the Royal Charter regime was recently described by Lord Grade (former Chairman of the BBC) as “bonkers”), it seems unlikely that the potential sanctions in the Crime and Courts Act will secure sufficient industry support to make the Royal Charter regime viable.

Future Inquiries

On a separate note, Lord Justice Leveson faced considerable pressure in October from both the Lords Select Committee on the Inquiries Act and the Commons Select Committee on culture, media and sport to answer questions concerning proposals for press regulation. Lord Justice Leveson refused to respond in detail to a number of questions as a matter of principle to preserve his independence as a member of the judiciary and to avoid becoming embroiled in a political debate. It will be interesting to see whether this has any impact on decisions to appoint serving members of the judiciary to chair inquiries in the future.

The House of Lords Select Committee is due to report on the “law and practice relating to inquiries into matters of public concern, in particular the Inquiries Act 2005” by 28 February 2014. We will keep you updated via the Public Law Group newsletter.