Weekly Notes: legal news from ICLR — 27 February 2017 [Extract]

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Press regulation

HC Culture, Media & Sport committee slams press over regulatory failure

IPSO granted year-long extension to comply with Leveson Report — yet another last chance saloon?

Wander into the long grass these days and you might trip over any number of things (such as the British Bill of Rights, the third runway at Heathrow, and the HS2 rail project) among which, it now seems, Leveson-compliant press regulation, like a rusty old supermarket trolly, may be now be found.

That, at any rate, must by the most earnest wish of the Independent Press Standards Organisation, or IPSO, a body set up by the press, funded by the press and intended to (self) regulate the press, in the wake of the Leveson Inquiry into the conduct of the press following the phone-hacking and other mainly tabloid newspaper scandals.

The Leveson Inquiry Report made a number of recommendations about how the press should be regulated. Following its recommendations, a Royal Charter was granted to a body known as the Press Recognition Panel (PRP, though it should really be called the Press Regulator Recognition Panel) to assess and approve an independent press regulator. Late last year they recognised one such regulator, IMPRESS, as being wholly Leveson-compliant. IPSO is not recognised by the PRP nor does it wish to be, partly because it regards the Royal Charter and PRP route as a form of backdoor state or statutory regulation. It also points to the fact that the charity which funds IMPRESS is in turn funded in large part by Max Moseley, an individual who has fought the press in the courts and won substantial damages. He is therefore seen as an Enemy of the Press, or at any rate a vested interest. But he is not the state, nor does he represent the state. And IPSO can hardly be considered independent given that it is funded by the very publishers it regulates, and its Editors’ Code committee is stuffed full of industry personalities.

To enforce Leveson’s recommendations Parliament enacted provisions in the Crime and Courts Act 2013 including section 40, which imposes potentially punitive costs provisions on any publisher that does not belong to an approved regulator, but protectively caps the costs of any publisher that does. This section has not yet been brought into force: it was initially dependent on the PRP approving a regulator (subsection (6)) but since that has now happened, the appropriate minister, the Secretary of State for Culture, Media and Sport (Karen Bradley MP) must find another excuse to put it off. This she did by announcing that the government would “take stock” of press regulation by issuing a public consultation. The consultation closed on 10 January. Apparently, there were 140,000 responses, though the majority of these would appear to have been pro-forma click-n-sign jobs issued by the interested parties (IPSO and IMPRESS) as part of their public awareness campaigns.

The consultation (which we reported earlier in Weekly Notes — 23 January 2017) asked two questions: (1) whether the section 40 costs provisions should be brought into force; (2) whether to proceed with the second part of the Leveson inquiry (into misconduct by the police and press and questions of corporate governance). For more detail, see the Transparency Project blog, Press regulation: what are we waiting for now?

Last week, the cross-party House of Commons Culture Media and Sport Committee responded to the Department’s consultation. They suggested:

If the vast majority of newspapers and magazines continue to refuse, on principle, to accept regulation under the terms of the Royal Charter, then the government should create an alternative path, that would allow IPSO to become established as the preferred body to take responsibility for the self-regulation of the press.

However for this to be achieved, the committee believes that IPSO needs to make substantial progress in establishing a low cost arbitration scheme to consider complaints against the press, to increase the resources at its disposal to launch investigations, and to fund a campaign to inform the public about how and where to make complaints to IPSO.

If IPSO can make the necessary reforms to become compliant with the spirit of the Leveson recommendations, then the government should repeal the provisions within Section 40 that relate to the awarding of costs in court cases taken up against the press.”

The committee recommended that IPSO be given a year to make itself Leveson-compliant in the arbitration department, failing which section 40 should be enacted. Needless to say, the press reported this as a big win for self-regulation over what they unfailingly refer to as Moseley-funded regulation (boy, does Max get under their skin!). But the committee’s report [pdf] is worth reading in full because it is far more sceptical and critical of the unrepentant press than this one-year free pass would appear to suggest.

It notes at paras 15, 19 and 22:

[15] In response to the Secretary of State’s consultation, there was a high-profile campaign by the press protesting over the Royal Charter process, which they argued was the imposition of “state-backed” regulation. Some of the arguments put forward were, in our view, unconvincing and misleading…

[19] It appears to us that the press finds itself again confident of resisting substantial change four years after the Leveson Inquiry. […] By comparison, it is not clear to us why broadcasters should have to adhere to the Broadcasters’ Code and regulation by Ofcom but the press be allowed to define their own terms vis-a-vis the public.

[22] All of us are of the view that the press have been allowed enough time to create a fully Leveson-compliant regulator; it has chosen not to do so.

IPSO’s reprieve depends on it successfully getting people to use its low-cost arbitration scheme, the pilot version of which it has rather hurriedly been promoting in recent weeks. The problem is that no one seems to want to use it.

IPSO Editors’ Code consultation

Meanwhile, IPSO also launched a consultation, on the contents of its Editors’ Code. It’s chair, Sir Alan Moses (a retired Lord Justice of Appeal) said:

“The Editors’ Code of Practice is the cornerstone of IPSO’s contractual agreement with the press and is the document by which we determine whether standards have been breached by any of the two thousand publications we regulate. However, the Code cannot stand still and needs to evolve. A trusted, thriving and free press is vital to our national discourse and I encourage anyone with a view on how the press is regulated to respond to the consultation.”

The consultation was launched on 1 December 2016 and the deadline for submitting a response is the Friday 3 March 2017 — the end of this week. However, on 20 December 2016 IPSO announced it was launching a new edition of its Editors’ Codebook, which incorporates and explains the Editors’ Code.

So without waiting for anyone to respond to the consultation on what it should contain, IPSO has simply republished its Editors’ Code in its existing form. This is hardly an encouragement to engage with the consultation as Sir Alan exhorts us.

Anyone nevertheless wishing to respond should do so via this link.

You may wish to comment also on IPSO’s Rules and Regulations (2013), which govern the way complaints are handled (or not handled), and which are not particularly easy to find on IPSO’s website.

[This is an advance extract of the full Weekly Notes roundup for 27 February 2017, which will be available via the ICLR Blog later. It is written by Paul Magrath, Head of Product Development and Online Content at ICLR, who tweets as @maggotlaw .]

The ICLR publishes The Law Reports, The Weekly Law Reports and other specialist titles. Set up by members of the judiciary and legal profession in 1865.

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