Lord Justice Leveson today said a low-cost
arbitration service should be established to help newspapers and
magazines resolve legal claims.
Publishing his long-awaited report
into the culture, practice and ethics of the press, Leveson LJ proposed
that a statutory body such as Ofcom should take responsibility for
monitoring an overhauled Press Complaints Commission.
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Lord Justice Leveson
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Such a body
would provide a dispute resolution service and those that do not sign up
to the new form of independent regulation of the press would leave
themselves open to claims for exemplary damages in civil claims.
Publishers would also lose the ability to claim back their own costs in
libel and privacy cases, even if they won, if they did not sign up.
Leveson LJ said: “I believe these proposals in relation to costs
should provide a powerful incentive for all publishers to want to be
part of such a self-regulatory system.”
In his 2,000-page report
Leveson LJ said the press must create a new and tough regulator, but it
had to be backed by legislation to ensure it was effective.
“The
press has to be accountable to the public in whose interests it claims
to be acting and must show respect for the rights of others,” he said.
“It
should not be acceptable that it uses its voice, power, and authority
to undermine the ability of society to require that regulation is not a
free for all, to be ignored with impunity.
“The answer to the question who guards the guardians, should not be ‘no one’.”
Excerpts from the report:
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“An independent regulatory body should be established, with the dual
roles of promoting high standards of journalism and protecting the
rights of individuals. That body should set standards, both through a
code and in relation to governance and compliance.”
- “The body
should: hear individual complaints against its members about breach of
its standards and order appropriate redress while encouraging individual
newspapers to embrace a more rigorous process for dealing with
complaints internally; take an active role in promoting high standards,
including having the power to investigate serious or systemic breaches
and impose appropriate sanctions; and provide a fair, quick and
inexpensive arbitration service to deal with any civil law claims based
upon its members’ publications.”
- “…the provision of an
arbitration service that is recognised and could be taken into account
by the courts as an essential component of the system, not (as suggested
by Lord Black) simply something that could be added at a later date.
The service could be administered comparatively easily within the
regulator and be staffed by retired judges or senior lawyers with
specialist knowledge of media law whose fee would be met by the
publisher but who would resolve disputes on an inquisitorial model,
striking out unmeritorious claims and quickly resolving the others.”
-
“If, by declining to be a part of a regulatory system, a publisher has
deprived a claimant of access to a quick, fair, low cost arbitration of
the type I have proposed, the Civil Procedure Rules (governing civil
litigation) could permit the court to deprive that publisher of its
costs of litigation in privacy, defamation and other media cases, even
if it had been successful.”
- “The board should publish an annual
report identifying, amongst other things “information about the extent
to which the arbitration service had been used.”
The lawyers respond:
Withers partner Amber Melville-Brown
Journalism
has to be plied professionally if the press is to take its proper place
as watchdog and bloodhound of society, rooting out and alerting us to
evil. And Lord Justice Leveson has also acknowledged the need for the
press to be able to inform, educate and entertain, and in doing so to be
“irreverent, unruly and opinionated”.
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| Amber Melville-Brown |
The PCC had failed, he
said, in keeping the press to its responsibility to the public. And
therefore there was a need for real independent, statue backed,
self-regulation. If such regulation is not truly independent of industry
leaders, government and politicians, it would not have the confidence
of the public and would effectively be ‘the industry marking its own
homework’.
But the report raises various questions. What might
happen if the media as a whole, doesn’t agree to buy in to the scheme?
And how will a two tier approach, with on the one hand a form of
arbitration under the new proposed regulator and the traditional ambit
of the courts on the other, play out.
There was cross- party
support for a new Defamation Act favouring publishers and the result of a
vociferous campaign by defamation law detractors , anticipated in 2013.
Whether government - to whom the ball has now been firmly passed by
Leveson - will show support for the essential regulation he asserts is
required, or whether he will bow under the pressure of powerful,
publishing scaremongers and ignore or delay Leveson’s recommendations,
remains to be seen.
Eversheds associate Andrew Terry
Lord
Justice Leveson described the Leveson Inquiry today as the “most
concentrated look at the press this country has ever seen”. It will take
time to study the detail but it appears to offer the press one last
shot at a form of self-regulation with voluntary membership, in theory
at least. It is proposed to be underpinned by statute but Leveson LJ is
clear that this is independent regulation organised by the press.
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Andrew Terry
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Crucially,
and perhaps surprisingly, Leveson LJ proposes a voluntary scheme with
incentives in place in order that newspapers sign up. These incentives
include an arbitration service to deal with disputes in a quick and low
cost way, with additional damages being awarded in successful litigation
brought against those who do not subscribe to the regulatory body. The
detail will need to be scrutinised to understand whether or not Leveson
LJ has done enough to address the ‘Desmond Problem, that is, are these
proposals really strong enough to guarantee that all major news
publishers participate meaningfully in the new regime in the long term?
5RB barrister David Sherborne, counsel to the core participant victims (CPVs) at Leveson
Together
with my clients, we have had the opportunity to read what we can of the
report in the time available earlier this morning. It is on any view a
weighty and impressive document, especially as it has been produced
within the tight timeframe that Lord Justice Leveson set himself at the
outset.
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David Sherborne
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While I am sure that many individual CPVs will be giving
their own reaction, the consensus is that we welcome the contents of the
report and in particular both the findings it contains and the
recommendations which are proposed. The Hunt/Black proposal, which has
been supported by the majority of the print media, has been demonstrated
to be utterly unworkable and should be consigned to a footnote in the
history of press regulation, which is where it belongs.
In the
face of the compelling and often disturbing evidence that my clients
gave to the inquiry about their experiences at the hands of the press,
the need for a strong independent regulator is frankly unarguable and
Lord Justice Leveson has recommended exactly that. It only remains now
for elected politicians to keep their promises and to put aside their
personal relationships with newspaper proprietors and editors. The whole
reason why the Government appointed such a senior judge to conduct a
public inquiry into press standards was because politicians had been
compromised, as module 3 so graphically demonstrated.
Schillings partner Chris Scott
We
called for Lord Justice Leveson to think big and broadly at how
reputation and privacy disputes can be resolved quickly and more
effectively. Providing incentives to the press rather than threats is a
sensible approach to underpinning effective self-regulation and
encouraging participation.
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Chris Scott
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Changing the way the costs of legal
proceedings are dealt with is an ambitious move in the right direction.
Looking at replacing the Press Complaints Commission in isolation while
reform of libel and its costs are debated risked missing an opportunity.
By drawing the issues together Leveson LJ creates a possibility of
creating genuine improvement not only to the position of those who find
themselves complaining to the press, but also to meet press concerns
about the impact of legal disputes.
The hard part now is the
detail to achieve demonstrable independence sufficient to have the
confidence of the public and press. This not easy to achieve and
guaranteeing that independence through ‘statutory verification’ both now
and in the future will take serious reflection to get to a result that
will stand the test of time.
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Mark Stephens
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Finers Stephens Innocent partner Mark Stephens
How
does Lord Justice Leveson’s suggestion of fines up to £1m square with
the cap on damages to avoid the chilling of free speech? It seems that
he has forgotten the Elton John decision in the European Court of Human
Rights.
We have a cap on libel and privacy damages of £230,000 so
as to avoid fines having a chilling effect on free speech. This is
clearly yet another area that the Prime Minister will need to look at
more carefully.
Carter-Ruck partner Isabel Martorell
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| Isabel Martorell |
Lord
Justice Leveson was right in a number of important respects. First, to
recognise the significant failings in the culture, ethics and standards
of the press and the overwhelming arguments for a strong independent
regulator. While a majority of the British press do uphold and adhere to
proper journalistic standards, the actions of a significant minority
have demonstrated time and again that self-regulation does not work.
As
such, without the statutory underpinning that the Leveson Report
recommends, any proposals for reform were likely to lack credibility in
the eyes of victims of egregious press conduct. Crucial also from the
victims’ point of view were perhaps two things in particular: that any
regulatory body is truly independent from the press, and also that it
has real ‘bite’ - a power to take effective enforcement action against
transgressors, which the PCC conspicuously lacked.
Leveson LJ
addressed the question of independence by making clear that a new
regulator must not include any serving editors and must also comprise a
majority of people who are entirely independent of the press. In terms
of the efficacy of the sanctions regime proposed - which includes
financial sanctions of up to 1 per cent of turnover with a maximum of
£1m - this will depend almost entirely on the new regulator’s
willingness actually to employ these powers.
Guardian News & Media legal director Gill Phillips
The
report is damning about the widespread failings in the culture, ethics
and standards of the press and recognises the devastating consequences
this has had for the victims. It finds the relationship between the
press and politicians got far too cosy. The police seem to have got off
quite lightly.
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Gill Phillips
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The report does seem to tar some sections of the
press - for example the regional press - with the failings of the few.
It concludes, again no surprises here, that the PCC has failed and that a
new body is needed.
There appears to be a large degree of
consensus around the independent self-regulatory aspects of the report’s
recommendations, less so about the statutory verification process the
report suggests should be operated by Ofcom.
Is this crossing the
Rubicon, as the Prime Minster suggests? Is Ofcom the right body to do
this? To what extent will it go beyond verification so as to involve
monitoring?
What’s good about the independent self-regulatory
system is that it is entirely voluntary. It relies on incentives, for
example it recommends constructing a costs regime in relation to privacy
and libel cases that would make membership of a voluntary system a
significant benefit for any publisher.
There is little suggestion
of substantive changes to the law other than the statutory verification
process and two recommendations that appear, at first blush at least, to
be seriously worrying, namely recommendations to narrow the
journalistic exemptions under the Police and Criminal Evidence Act and
the Data Protection Act. These will need careful consideration as to
their implications.
Michael Simkins partner Gideon Benaim
The
Leveson Report has finally been published and the scope of its
recommendations are beginning to sink in, although it’s fair to say it
will take a bit of time to read the four inch-think volumes.
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Gideon Benaim
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What
an historic opportunity we have here. Politicians, now is your time to
act by supporting and implementing what are extremely generous
proposals. It could have been so much tougher. It’s not the time to
behave cowardly, so it was really good to see Miliband and Clegg showing
they have integrity. The public are behind reform - all the polls show
it - but the Prime Minister is already backing down. That is extremely
bad form.
Independent self-regulation organised by the press with
statutory underpinning as recommended by Lord Justice Leveson should be
an easy pill for the press to swallow. It’s a much lighter touch than it
could have been.
If the press fails to set up, support or sign up
to the new independent self-regulator it could face statutory
regulation, so I expect it will do its utmost to make it work, at least
cosmetically, and give the politicians a get out.
All in all I
believe that Leveson has done the best he believed he could, but his
recommendations require politicians to stay on track, and the Prime
Minister is already backing down.
Mishcon de Reya partner Charlotte Harris
The
Leveson Inquiry has dominated the press over the past 18 months, and
the report has been eagerly anticipated by the media and the public
alike. Lord Justice Leveson’s report is incredibly thorough and is, I
believe, vital to restoring public confidence in print media. The report
roundly asserts the current system is not good enough, and at Mishcon
de Reya we welcome the recommendation of an independent self-regulatory
body governed by an independent board. We likewise welcome the
categorical statement that neither government nor parliament should be
involved in regulating the press.
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Charlotte Harris
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However, the report also
provokes pressing questions. The recommendations must be backed up in
statute, but will this be by tinkering with existing legislation or
creating new legislation? The absence of a draft bill or draft code are
both notable - even more so is the lack of a statutory timetable.
Leveson LJ made it clear the ball is now in the politicians’ court. For
the inquiry to serve its purpose, addressing the culture, practices and
ethics of the press and protecting individuals as well as free speech,
it must not be kicked in the long grass.
Source: TheLawyer
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