Today (29 November 2012) marks the publication of Lord Leveson’s report into the culture, practices and ethics of the press. The report is 2,000 pages long – this initial comment is based on the executive summary and the speech made by Lord Leveson on the report’s publication. It is clear that there will be considerable ground for further discussion in the days and weeks ahead.

Prior to the publication of the report there was considerable consternation being expressed within the press at the concept of statutory regulation. Lord Leveson is at some pains in his report to stress that while his proposals for a new framework of regulation does entail some statutory under-pinning, it does not represent state regulation of the press. This is unlikely to be a distinction which satisfies the concerns of the newspapers who will be affected, nor indeed does it appear to have eliminated doubts within government about the appropriate way to proceed.

What remains unclear is precisely why this part of the media considers itself to be entitled to continue to self-regulate (and Lord Leveson’s detailed report makes very clear that on a significant number of occasions this has actually meant to fail to self-regulate) in light of all that has happened. The first sentence of Lord Leveson’s speech, echoed in the introduction to the executive summary of his report, recorded that this was the seventh occasion in less than seventy years in which a government organised inquiry has reported following failures by the press. On each previous occasion, the answer proposed by the press and accepted by government has been for there to be an improved system of self-regulation. The catalogue of further failings, the numerous examples of poor ethical conduct and practices, that the Leveson Inquiry has identified, make it clear that this is a solution that has not worked.

This is so, even though large parts of the press are not guilty of any such failings, and even though the vast majority of journalism is undertaken in the public interest, and with the objectives (as Lord Leveson himself put it) of “informing, educating and entertaining”. He acknowledged in his speech that in doing so, the press should be free to be “irreverent, unruly and opinionated”. However, as he also recognised, with the great power that is afforded to the press in light of the public interest that they serve, there is an accompanying responsibility to serve that interest. Failures to do so had, he said, “wreaked havoc in the lives of innocent people”.

It is these failings that have led to the current position and to the Inquiry’s recommendations, and the consequences of that will be for the whole industry to grapple with. Lord Leveson pointed out that he does not know of any organised profession, industry or trade where serious failings of a few would be overlooked because of the good works done by the many. Indeed, he makes the critical point that if such failings took place in any other profession or industry, and were not properly held to account, the press could be expected to subject such failings to the very highest level of scrutiny. In a pithy summary, he said that the free press holds power to account, but with “a few honourable exceptions” the press had singularly failed to do so in relation to its own powers.

So much for the catalogue of problems that Lord Leveson has identified. What, then, is envisaged by the Report’s recommendations? Although the press will undoubtedly try to paint this as a dark day for journalistic freedom and independence, a significant degree of self-regulation would actually remain, even if the recommendations were implemented in full. What is recommended is that a regulatory body and code of conduct should be established by the press, albeit crucially (in light of the discredited Press Complaints Commission) with a membership drawn from outside either of the industry or of government. That wholly independent regulatory body would not be a creature of statute or more importantly of parliament. The statutory under-pinning would be confined to three critical areas:

  1. the imposition of a statutory duty on the government to secure and safeguard the freedom of the press;
  2. the recognition of the independent regulatory body providing the public with a mechanism to reassure them that the body would at all times be truly independent; and
  3. through that recognition, securing legal status for an arbitration procedure to be operated by the new body.

That would have valuable advantages in relation to costs consequences for a failure to participate in the low cost and streamlined dispute resolution process, which would have advantages both for individuals fearful of being outgunned by well-resourced media opponents in the Courts, and for newspapers wishing to avoid the risk of exposure to the (somewhat apocryphal) high level of claimant’s court costs.

These are modest objectives, and certainly go no further than the existing statutory basis for regulation of other parts of British society which one might reasonably regard as being important to keep independent. Lawyers are subject to regulation which derives its statutory under-pinning from the Legal Services Act and the body created by that statute, the Legal Services Commission. No-one sensibly suggests that this precludes lawyers from maintaining their independence in litigation involving the government. Rather closer to the territory of the press, television media has been subject to statutory regulation since its inception, and it is rarely suggested that this regulatory regime precludes that part of the media from pursuing free and impartial investigative journalism. Indeed, on several noteworthy occasions, the print media have been quick to suggest that the regulation of television does not go far enough.

In those circumstances, the press’s continued opposition to any statutory basis for regulation starts to look much less like a principled objection based on the preservation of fundamental freedoms, and much more like the desire to retain the competitive advantage that a self-authored and self-imposed code of conduct (with all of the flexibility and freedom from consequence that that entails) has to date afforded them. Lord Leveson plainly regards it as unacceptable that the press should be entitled to continue to “mark their own homework”. There will therefore no doubt be a great many who were disappointed this afternoon to see the Prime Minister express his instinctive resistance to any form of legislative consequence to the Leveson Report’s conclusions. Similarly, there will be those who are relieved that the principle of no statutory regulation is not going to be conceded without a fight.

What is clear is that the Report marks the start of what is likely to be a prolonged and difficult debate, and one which all who have an interest in the ways in which press behaviour is regulated should follow with great interest. We will be providing further comment on developments in this field as they emerge, and in the meantime are always ready to assist individual clients who wish to understand the implications of these changes for themselves or their businesses, with any questions they may have.