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Bulletin: Fall 2012: Volume 18, No. 1

Leveson Inquiry Report Calls for New System of Press Regulation in United Kingdom

On Nov. 29, 2012, Lord Justice Brian Leveson released his 1,987-page report of findings and recommendations stemming from his 17-month inquiry into the culture, practices, and ethics of the United Kingdom press. The report, among other things, recommends a new system of press regulation that would be mandated by a parliamentary statute. The report and recommendations are drawing concern from free press advocates who fear the changes suggested would be detrimental to the UK’s 300-year old tradition of broad press freedom. But those who have been frustrated and outraged because of the British media’s actions in recent years argue the recommendations do not go far enough to curb the unethical behavior of the press or to provide redress for victims.

The Leveson Inquiry began in November 2011, prompted by the British “phone hacking” scandal. The practice of phone hacking — illegally accessing the voicemail of famous or prominent subjects of coverage — had been known since 2006, but public and political outrage grew after an investigations by the Guardian revealed that the News of the World accessed the voice mail of Milly Dowler, a 13-year-old girl who went missing in 2002 and was later found murdered. News of the World, owned by Rupert Murdoch’s News International, closed its doors in July 2011 amid the scandal and a number of its previous editors, reporters, and investigators face criminal charges. (For more on the phone hacking scandal, see “Update: Charges Filed in British Phone Hacking Cases” in the Summer 2012 issue of the Silha Bulletin, “Not Just a ‘Rogue Reporter’: ‘Phone Hacking’ Scandal Spreads Far and Wide” in the Summer 2011 issue, and “Murdoch-owned British Paper Embroiled in Phone Scandal” in the Fall 2009 issue.)

Report Calls for New British Press Regulation Entity with Statutory Backing

In his public remarks on release of the report, Lord Justice Leveson said the evidence of the inquiry showed that “on too many occasions” the press’ responsibility to democracy and to the public interest, as well as the Editors’ Code written and enforced by the press, “have simply been ignored.” Therefore, Leveson recommended a new press regulatory body entirely independent from the press that includes “an effective system of self-regulation of standards, with obligations to the public interest.” This body would replace the Press Complaints Commission (PCC), the current self-regulatory body of the press, which was criticized after it reported that the practice of phone hacking was not widespread. The PCC is a voluntary body for British print publications that is made up of representative of the major publishers. It is funded by its member newspapers and magazines and has no legal authority.

The regulatory body proposed in the Leveson report would not include any current newspaper editors, current Members of Parliament (MPs), or members of government. Retired editors and journalists, however, would be eligible to be members. The Standards Code Committee would be responsible for drafting a new standards code, and its breach could result in a fine of up to £1m, or about $1.5 million, to the publication. As with the PCC, individuals could complain to the new body at no cost. Beyond fines, other potential sanctions would include mandated publication of a correction or an apology. Lord Leveson’s proposals also include an attempt to lower litigation costs by suggesting a new arbitration service that would offer an alternative to settle a dispute. The arbitration service would only be open to use by organizations who were members of the new regulatory body.

To ensure the proper functioning of a new regulatory system, Leveson also recommended that the new body be accompanied by a “statutory underpinning,” meaning that legislation would be passed by Parliament to make sure the body remained independent and effective. “… I have recommended legislation that underpins the independent self-organized regulatory system and facilitates its recognition in legal processes. … This is not, and cannot be characterized as, regulation of the press,” the report said. In a November 29 story summarizing the report, the BBC said this legislation would “enshrine, for the first time, a legal duty of government to protect freedom of the press.” The executive summary and the Leveson Report in its entirety are available at http://www.levesoninquiry.org.uk/.

The proposed “statutory underpinning” now being referred to as the “press law” is drawing concern from the industry and dividing politicians. British Prime Minister David Cameron told national newspaper editors at a December 4 meeting that in order to avoid introduction of a new press law by the government, they must implement all of the Leveson report recommendations, according a Guardian story the same day. Editors of the Daily Telegraph, the Sun, the Daily Mirror, the Guardian and The Times (of London) were among those present at the meeting. The most notable absence, the Guardian reported, was Paul Dacre, the editor-in-chief of the Daily Mail, who was unable to attend because of a funeral. After speaking, Cameron turned over the meeting to his culture secretary, Maria Miller, and Oliver Letwin, the Cabinet Officer Minister, whom the Guardian called Cameron’s “policy fixer.” Letwin has been tasked with dealing with the legal aspects of implementing Leveson’s recommendations, the story said. Letwin’s address to editors echoed that of Cameron and said, except for the statute, the report must be implemented “line by line.” Editors expressed some concern about third parties lodging complaints with the ultimate aim of influencing news agendas, but otherwise, the Guardian reported that there was minimal dissent at the meeting. 

According to a December 5 BBC report, UK news editors were understood to have approved of 40 of the 47 proposals made in the Leveson Report, including the proposed regulatory body with the power to impose monetary fines. A memorandum sent to editors by former Mail on Sunday editor, Peter Wright, distributed to other news editors prior to the meeting, indicated concerns with the structure of a Standards Code Committee and who would ratify changes to an Editors’ Code, third-party complaints, pre-publication advice, and the protection of confidential sources. A copy of the editors’ memo with notations of what editors found acceptable and not acceptable about each of Leveson’s proposals is available at http://www.guardian.co.uk/media/interactive/2012/dec/05/leveson-inquiry-newspapers.

Most of the newspaper editors publicly opposed the proposed statutory component, but were optimistic that the rest of Leveson’s recommendations could be implemented. The Mirror’s Editor-in-Chief Lloyd Embley wrote on Twitter following the meeting that “there is a firm belief that papers can deliver Leveson principles far more quickly without legislation – better for public and free speech.” The Guardian said there were “many good things about Leveson’s ideas” and the Daily Express said Cameron’s “challenge to the newspaper industry to devise its own regulatory system that complies fully with the tough principles set out by Lord Leveson, delivers fair play and yet does not require legislation is therefore one we are happy to take up. The task is an urgent one.” A compilation of reactions from UK media is available on the BBC’s website at http://www.bbc.co.uk/news/uk-20546397.

Other organizations also support change to the current press regulatory body. Article 19, an international press freedom advocacy group, agreed “effective self-regulation is the best way to ensure a truly independent and diverse press” in a November 29 press release. “The fact that self-regulation did not work does not mean that it cannot work,” Agnes Callamard, executive director of Article 19 said in the release. “The PCC clearly failed to do its job properly but a system of meaningful self-regulation that ensures accountability and protects the rights of individuals is not a lost cause.” However, the organization expressed concern over any UK statute that would require self-regulation. Callamard said that although international law does not prohibit such a statute, history has shown statutory regulation in the press often results in abuse of these laws by government to “selectively control what newspapers and other periodicals may say.”

But not all of the British press was on board to praise even a part of the Leveson Report. London-based magazine The Economist published one of the harshest critiques of the report in a December 8 opinion piece, calling parts of the report “a scissors-and-paste job culled from Wikipedia.” The commentary said Leveson focused too much on tabloid journalism and “showed less interest in serious journalism, even though his rulings will affect all papers.” Like many critics of the report, The Economist pointed out the lack of discussion in the report about new technology and argued that a government cannot impose standards on writing as it imposes standards on other professions like doctors or architects. “Every tweeter, blogger and author of a Facebook post is a reporter of sorts.” The piece advocated that Parliament wait before taking any action to introduce a press law and argued that the current criminal prosecutions of “once-mighty journalists” is likely to change tabloid press behavior.

But other critics argue that self-regulation of the press is not enough to keep the media accountable. Hacked Off, an advocacy group campaigning for tougher press regulation, called any reform without statutory backing a “charade,” according to a December 6 Guardian story. At a press conference organized by the group on the same day, Natalie Fenton, a professor of media and communications at Goldsmiths University, said unless the new body is recognized by law “everything else is pointless,” the story said. Hacked Off is also hosting an online petition on its website that individuals can sign in support of Leveson’s recommendations, including the press law. The group has the support of many victims of “press intrusion” and had collected more than 141,000 signatures as of December 5, according to a BBC report the same day.

Sheila Hollins, a baroness and a cross-bench peer in the House of Lords, also spoke out in support of the recommended press law. Her daughter, Abigail Witchalls, received a great deal of press attention in 2005 when she was paralyzed after being stabbed in the neck, according to the December 6 Guardian report. Hollins told the Guardian her family had been harassed by the press for five years and that many reports were not “accurate or ethical,” including a story in News of the World that said her daughter was pregnant at the time of the stabbing. “I just don’t think there is a place for the sensationalism to which my family and daughter were subjected,” Hollins said. “I would support something in law to verify that the future press regulator is actually fit for purpose. I do not believe that this can be left entirely to the owners of newspapers.”

J.K. Rowling, the author of the Harry Potter series of books, said she felt “duped and angry” at Prime Minister Cameron’s rejection of the statutory underpinning of a new press regulatory body. “If the prime minister did not wish to change the regulatory system even to the moderate, balanced and proportionate extent proposed by Lord Leveson, I am at a loss to understand why so much public money has been spent and why so many people have been asked to relive extremely painful episodes on the stand in front of millions,” she told the Guardian for a November 30 report.

Political Leaders Split Over Leveson Statutory Recommendation

Political leaders are split over Leveson’s recommendation that a new self-regulatory system be backed by a parliamentary statute. The statutory provision is supported by members of the opposition Labour party and left-of-center Liberal Democrats, but also numerous Conservatives, The New York Times reported on November 29. Supporters argue the statutory underpinning would give the new body “real teeth,” the Times story said. But opponents, including Conservative Prime Minister Cameron, said this type of legislation would be headed down the pathway of state-sanctioned press controls, and reverse a tradition of a free press in the UK dating back to the abandonment of newspaper licensing in 1695. “I’m proud of the fact that we have managed to last for hundreds of years in this country without statutory regulation and if we can continue with that, we should.” Cameron said regarding the report.

But Labour party MPs released a six-clause draft bill that would give the Lord Chief Justice the authority to certify the effectiveness of the self-regulation of the newspaper industry every three years, according to a December 9 Guardian story. Further, the draft bill also proposes (1) that the press regulatory body, to be named the Press Standards Trust, be recognized by the Lord Chief Justice if a substantial majority of newspapers are members and (2) incentives are provided for newspapers to join this trust through lower levels of high court damages and costs. The bill also suggests the judiciary use the following criteria to examine whether the regulatory body is carrying out its proper function: (1) composition of the body; (2) the body’s investigation of complaints; and (3) the body’s publication of a code that includes guidance on the definition of “public interest.” The bill also includes a provision to “guarantee the freedom and independence of the media,” as the Leveson Report suggested, and requires ministers and government agents to protect press freedom. The full-text of the draft bill is available online at http://www.guardian.co.uk/media/interactive/2012/dec/10/press-freedom-and-trust-bill-draft.

In what the Guardian characterized as a “significant switch,” the Labour party did not propose that Ofcom, the government entity in charge of broadcast regulation, act as the body to oversee the new press regulation body.  The Leveson Report proposed that Ofcom be the government entity involved, and Labour party leader Ed Milliband had initially said the party supported acceptance of the proposals in their entirety. “The debate showed a preference for something other than Ofcom to act as the recognizer, so we have responded to that,” Shadow Culture Secretary Harriet Hartman (MP-Labour) said. “If there is greater comfort with the judges due to their independence from the executive that is fine. It is not tablets of stone. It is an effort to facilitate the talks.” (The Shadow Culture Secretary is the deputy leader of the party in opposition in Parliament.)

The release of the draft was supported by Liberal Democrats, which indicates there may be a majority in the House of Commons to pass a statutory provision, the story said. But Conservatives dismissed the plans “as lacking in detail,” according to a December 10 Independent report. The party planned to release its own proposal regarding press reform, with Cameron in agreement, in time for cross-party talks on December 13, the Independent reported, but Oliver Letwin continued to discuss an evolving Conservative plan through December 20.

Letwin, on behalf of Prime Minister Cameron, proposed a royal charter to establish a body that will verify whether the new press regulatory body is compliant with the Leveson report, a December 20 Guardian story said. A royal charter is a type of formal document that dates back to before a constitutional monarchy and Parliament were introduced in the UK. They have been used to establish cities, universities, and the BBC, among other entities. In a meeting with Hacked Off, Letwin also suggested that a bill may also be introduced in Parliament that would require a “super majority” (up to two-thirds) vote in the Lords and Commons to change the royal charter, the Guardian reported. During talks of proposals, Cameron himself also indicated the possibility of a statutory underpinning to bolster the charter, despite his early declarations that he was not in support of a press statute. Normally, royal charters can be amended by ministers, using the power of the monarch through the Privy Council. (The Privy Council is a body that advises the Sovereign of the United Kingdom, in this case, Queen Elizabeth II. It is mostly made up of current or former senior politicians of either the House of Commons or the House of Lords.)

The Labour party appeared “willing to explore the proposal” as long as there is some form of a statute that guarantees that the royal charter could not be amended by the executive, the Guardian reported. The Liberal Democrats support a statute requiring that two-thirds of MPs agree to any changes to a royal charter that would oversee the new regulatory body. But the press reacted to the proposed charter with more nervousness, the December 20 Guardian report said. At a press briefing the same day, Lord Hunt, chairman of the PCC, said he thought the royal charter “can be a way through, but only if it doesn’t seek to interfere with anything other than a verification of the independence of the overall structure.” Newspaper owners and editors plan to meet with leading politicians on Jan. 10, 2013 to discuss the latest proposals for press regulation, according to a December 21 Guardian story. Ed Millibrand is calling for a solution to be reached by the end of January.

Commentators have had mixed reactions to the political discussion surrounding the implementation of the Leveson recommendations. In a November 30 column for the Guardian, former Times (of London) editor Simon Jenkins commented on the “bizarre” agreement by Cameron to allow the drafting of a press law after publicly disagreeing with any statutory underpinning to a new self-regulatory body. Jenkins characterized this as “huge gamble,” in which failure could mark the beginning of the end of press freedom in Britain.

Joan Smith, a columnist, critic and novelist who regularly contributes to BBC radio, gave testimony during the inquiry, articulating less concern over what she characterized as a “minimal statutory underpinning” suggested by Leveson in a December 2 column for the Independent. “If, as I expect, the report is eventually approved by Parliament, I suspect we will look back and wonder what all the fuss was about,” she wrote. Smith said she found Leveson’s proposals to be cautions and to balance freedom of the press and individuals’ right to redress harm. “The reason this matters is that the public and victims of press intrusion want the same thing: a better press, with stronger public interest defenses.”

Inquiry Finds no Widespread Corruption of Police by the Press

The Metropolitan Police Service (MPS), commonly referred to as Scotland Yard, which has jurisdiction over Greater London and also has significant responsibilities such as leading counter-terrorism efforts and protection of the British Royal Family and senior figures of government, was also a focus of the Leveson Inquiry. MPS was criticized for its failure to notify potential phone hacking victims and for too-close relationships between senior police officers and News International executives. But Leveson said in his report that he did not see “any evidence that corruption by the press is a widespread problem in the police.” Leveson acknowledged in the report that the relationship between senior officials of MPS and News International executives could understandably have been perceived as too close, but that he saw “no basis for challenging at any stage the integrity of the police, or that of the senior police officers concerned.” The perception, he said, came from “poor decisions” that were “poorly executed.” The report, however, did recommend the creation of “consistent national standards and guidance” regarding corruption and “enhanced training and awareness.” The proposal did not include any additional statutory or regulatory tools to deal with corruption, and Leveson noted the criminal penalties in place were enough to deal with this problem.

Report Warns Relationships Between Politicians and the Press Have Been Too Close

In the Leveson Report’s conclusions and recommendations chapter, the Lord Justice said in his view, “the evidence clearly demonstrates that the political parties of UK national government and UK official opposition have had or developed too close of a relationship with the press.” Leveson advocated in the report that there be greater transparency of meetings between the press and politicians. However, the report did not go as far as to list specific relationships of concern.

The inquiry, did, however, specifically examine the relationship between Rupert Murdoch and British politicians, including Prime Minister David Cameron. The report dismissed the allegations that Cameron and Murdoch made a “deal” to trade election support for Cameron’s Conservative Party in 2010 for policies favoring Murdoch’s media businesses, including Murdoch’s $12 billion bid to take control of British Sky Broadcasting. The bid failed as the phone hacking scandal developed and Cameron and Murdoch denied any such trade-off existed between the two.

But commentators have said that Murdoch’s “power nurtured a deep-rooted reflex, in successive governments and in the police, to curry his favor and to turn a blind eye to his editors’ excesses,” The New York Times reported on November 29. In response to these assertions the report said, “Sometimes the greatest power is exercised without having to ask. Just as Mr. Murdoch’s editors knew the basic ground rules, so did the politicians. The language of trades and deals is far too crude in this context. In their discussions with him, politicians knew that the prize was personal and political support in his mass-circulation newspapers.” According to The New York Times, Cameron emphasized what he called his “exoneration” speaking to the House of Commons after the release of the report. “We have had to listen to allegation after allegation, conspiracy after conspiracy, smear after smear,” Cameron said, referring to actions by the Labour party. “And each one has been put to bed comprehensively.”

Leveson Calls Press Behavior “Outrageous” at Times

Leveson said in the conclusion of his report that “the clearest message” that comes out of this inquiry addressing the culture, practices, and ethics of the press, is that “time and time again, there have been serious and uncorrected failures within parts of the national press that may have stretched from the criminal to the indefensibly unethical, from pass off fiction as fact to paying lip service to accuracy.” Because of the press’ ability to exercise “unaccountable power,” Leveson said the “status quo is simply not an option” and “the need for change in internal but most importantly in external regulation has been powerfully identified.” Beyond the phone hacking scandal, Leveson pointed to the press’ prioritizing of sensational stories despite the harm they may cause and the pursuit of stories that rose to the level of harassment. Although Leveson noted in his report that the “British press serves the public very well for most of the time,” he argued the problems his inquiry identified are “[un]likely to be eliminated by self-control.”

U.S. Newspapers Critical of Leveson Report as Viewed Through a First Amendment Lens

Director of the Silha Center and Silha Professor of Media Ethics and Law Jane Kirtley said in her Director’s Note for the Summer 2012 issue of the Bulletin that “from a First Amendment-based perspective, the Leveson Inquiry seems bizarre.” The launch of “a government inquiry into improper relationships between the press and those in power with the intention of defining what constitutes journalism ‘in the public interest’ seems risky,” Kirtley wrote. Press freedom groups and U.S.-based newspapers shared similar sentiments after the release of the report. The Murdoch-owned Wall Street Journal (WSJ) ran a highly critical November 29 commentary about Leveson’s proposals. “Judge Leveson calls for statutory press regulation that insists isn’t statutory regulation. It goes downhill from there.” The commentary went on to criticize what it characterized as a “non-voluntary voluntary self-regulation” body, noting that non-member print publications would be expose to “exemplary” damages in civil cases against them and that Leveson said he would make it more difficult for these entities to recover costs even if they prevailed in court. The WSJ concluded by stating that “Not everything [the British press] published is admirable; some of it may be inexcusable. But that is for readers, advertisers and, when laws are broken, for the courts to judge.” Press freedom, the commentary argued, “is crucial to keeping Britain free.”

The New York Times also opposed statutory press regulation in its November 29 editorial “Press Freedom at Risk.” “Press independence is an essential bulwark of political liberty in Britain as it is everywhere. That independence should not, and need not be infringed upon now.” The Times argued many of the issues presented in the report — illegal hacking into voice mails or illegally obtaining medical records — are not a protected part of the newsgathering process and can be dealt with through criminal prosecutions. Issues of bribery and corrupt relations with politicians and police could also be dealt with through the criminal laws already in place, the Times editorial said. Civil and criminal remedies, the Times posited, are the best way of holding newspapers accountable, not government regulation.

The New York-based press freedom watchdog, the Committee to Protect Journalists (CPJ), also issued a statement on November 29 expressing concern over Leveson’s recommendation to adopt statutory regulation of the press. “A media regulatory body anchored by statute cannot be described as voluntary,” CPJ Executive Director Joel Simon said. “Moreover, adopting a statutory regulation would undermine press freedom in the UK and give legitimacy to governments around the world that routinely silence journalists through such controls.”

– Holly Miller
Silha Bulletin Editor