After nine months of hearings, oral evidence from over three hundred witnesses and further witness statements from nearly 300 others, Lord Justice Leveson yesterday published his 2,000 page report on his inquiry into the culture, practices and ethics of the press.
The primary recommendation of the report is a new independent self-regulatory body, underpinned by a statute which should identify the legitimate requirements of the new body and provide a mechanism to recognise and certify that it meets those requirements. The report also makes numerous other recommendations as to:
- how the new regulator should operate (including having the power to impose sanctions of up to £1m);
- amendments to the UK data protection regime;
- amendments to various aspects of the criminal law;
- the award of damages and costs in civil litigation in order to provide some incentives for publishers to join the new self-regulatory regime;
- the transparency of the relationship between the press and the police and an enhanced system for whistleblowers;
- the transparency of the relationship between the press and politicians; and
- media plurality.
There will no doubt be lots of analysis of the report from every part of the media and legal community over the coming weeks. David Cameron has already sparked a frenzied debate by expressing serious doubts about the proposed statutory underpinning. For the time being, we simply set out below a short summary of some of the report's key recommendations for the media.
The new regulator
Leveson stopped short of recommending a compulsory statutory regulator, but he did recommend a new "independent regulatory body" with the dual roles of promoting high standards of journalism and protecting the rights of individuals. Key aspects of this recommendation are as follows:
- The new self-regulatory body should be underpinned by a statute which should provide for a process to recognise the new body and ensure that it meets certain requirements and enshrine in law a legal duty to protect the freedom of the press. Ofcom should act in a verification role to ensure independence and effectiveness.
- The Chair and board members of the body should be independent of the press and Government and should be appointed by an independent appointment panel. There should be no serving Editor on the Board.
- The membership of the new body should be open to all publishers on fair, reasonable and non-discriminatory terms, including making membership potentially available on different terms for different types of publisher.
- The new system should be funded by the media industry by agreement with the Board of the new regulator.
- The new regulator should have the power to direct appropriate corrections and apologies and impose sanctions of up 1% of turnover with a maximum of £1m.
- The new body should establish its own Code with the aim of developing a clearer statement of the standards expected of editors and journalists.
- The new body should continue to provide advice to the public in relation to issues concerning the press and consider whether to provide an advisory service to editors in relation to the consideration of public interest.
- The new body should establish a whistleblowing hotline for journalists who feel they are being asked to do things which are contrary to the Code.
- The new body should consider requiring that newspapers publish compliance reports in their own pages and that a named senior individual within each title should have responsibility for compliance and standards.
Incentives to join the new scheme
- Publishers should be encouraged to sign up to the new regime through various legal incentives, including:
- access to a low cost arbitration service to deal with civil law complaints in relation to member publications;
- cost benefits in civil litigation for members who encourage complainants to use the arbitration service rather than litigating;
- potential exemption from exemplary damages in respect of media torts;
- being able to display a "kite mark" for use by members to establish a recognised brand of trusted journalism; and
- membership being taken into account by the Information Commissioner in deciding whether to take any enforcement steps.
- The Information Commissioner's Office should take immediate steps to prepare, adopt and publish a policy on the exercise of its formal regulatory functions in order to ensure that the press complies with the legal requirements of the data protection regime.
- The journalistic exemption in section 32 of the Data Protection Act 1998 should be narrowed in scope, in particular so that it is available only where the processing of data is necessary for publication and the data controller reasonably believes the relevant publication would be in the public interest.
Police access to journalistic material
- The Home Office should consider and, if necessary, consult upon the aspects of the Police and Criminal Evidence Act 1984 which impose restrictions on the ability of the police to access journalistic material (sections 11(3), 13(2) and paragraph 2(b) of Schedule 1).
- The recommendations in the Report of the Law Commission on Aggravated, Exemplary and Restitutionary Damages be adopted and that, in particular, exemplary damages retained (but renamed as punitive damages) and be available for breach of privacy and similar actions as well as libel and slander.
- The Civil Procedure Rules be amended to require the court to take into account the new regulator's arbitral system when considering costs at the conclusion of proceedings.
Plurality and media ownership
- Ofcom and the Government should work with the media industry on the measurement framework for plurality in order to achieve as great a measure of consensus as is possible on how media plurality should be measured before the measuring system is deployed.
- The Secretary of State should remain responsible for public interest decisions in relation to media mergers.