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Leveson and the Royal Charter

Leveson and the Royal Charter

It has been quite a long time coming (see my posts from last November and December) but an agreement was reached on 18 March 2013 between the UK’s three main political parties about a new press regulation system, following Leveson’s report into the culture, practice and ethics of the press.

[A]n agreement was reached on 18 March 2013 between the UK’s three main political parties about a new press regulation system, following Leveson’s report into the culture, practice and ethics of the press.

A draft royal charter – which is importantly not a statute passed by Parliament – was agreed, to establish a new independent regulator. The independent regulator will have the power to impose fines of up to £1m and demand corrections, going so far as to direct the nature, extent and placement of such corrections or apologies. The independence of the new regulator will be guaranteed by ensuring all members of such a body will have to meet stringent professional requirements. In the past, it has been the case that any proposed new member of the Press Complaints Commission had to be met with unanimous support of the existing panel, meaning that any one member could have the right of veto. However, this new regulator will not have such a requirement, which means that the newspaper industry cannot alone have the right to veto any proposed new member.

It is theoretically open for newspapers to sign up to adhere to the code of conduct of this new regulatory body of their own volition and, indeed, the charter provides for different types of membership available on different terms for different types of publisher. However, courts may be allowed to impose exemplary damages on newspapers or other publishers which fail to join, if they publish with reckless disregard to the claimant’s rights.

There has been no small measure of outcry in the press since the agreement was announced, with many editors and other newspaper industry employees indicating that they would not co-operate, or were at least taking legal advice before making a decision on whether to join such a new regulator. While many newspapers seemed to cautiously welcome a step towards resolving the problem of regulating the press, many stated that much still needs to be discussed before the royal charter can be accepted by all.

In particular, there has been some confusion over whether this new independent press regulator will be underpinned by statute, with politicians and other prominent figures appearing to disagree on the matter. This is regarded as extremely important by both politicians and journalists alike, with many stating that underpinning by statute will have a ‘chilling effect’ on freedom of speech and of the press. A royal charter does not have the same force or effect as statute, and is in fact granted by the Privy Council rather than put before Parliament in the same way as draft legislation; in this instance, it would be used to establish the new independent body to regulate the press. For further information on how this works, please see The Guardian’s article from December. However, the charter says that it can only be amended if there is a two-thirds majority in both houses of Parliament, which in turn is stated in an amendment to the Enterprise and Regulatory Reform Bill. While this will not directly mention the press or press regulator, it will ensure that the charter can only be altered with a two-thirds parliamentary majority.

While many newspapers seemed to cautiously welcome a step towards resolving the problem of regulating the press, many stated that much still needs to be discussed before the royal charter can be accepted by all.

Furthermore, the situation has been further complicated by proposed changes to the Crime and Courts Bill, which include a law to make it in publishers’ interests to sign up to the new regulator. These changes do give statutory underpinning to incentives to sign up to membership of the regulator by providing for exemplary damages if they do not. These provisions also all use the concept of ‘relevant publisher’ as defined in the royal charter as follows:

(1) In sections (Awards of exemplary damages) to (Awards of costs), “relevant publisher” means a person who, in the course of a business (whether or not carried on with a view to profit), publishes news-related material —
(a) which is written by different authors, and
(b) which is to any extent subject to editorial control.

And as Niri Shan, the head of media and entertainment law at Taylor Wessing, commented in Legal Week:

No matter how you dress it up, the press regulation deal amounts to statutory underpinning. When you get down to the basics, the royal charter might not be a statute passed by Parliament, but it is still liable to change if a two-thirds majority of Parliament can amend it. It’s semantics – under the new draft royal charter the politicians still ultimately control the press.

[T]he situation has been further complicated by proposed changes to the Crime and Courts Bill, which include a law to make it in publishers’ interests to sign up to the new regulator.

As both the charter and the Crime and Courts Bill also refer to websites containing ‘news-related material’, questions were also raised last week as to whether this applies to blogs, Twitter, small-scale news websites or other potentially relevant information sites published on the Internet. Individuals and the smallest of websites raised concerns that they could be hit with crippling exemplary damages if they fall foul of any of the relevant torts, including libel and breach of confidence, but these fears appeared to be assuaged somewhat when last-minute amendments were agreed in the House of Lords to make it clear that they will be excluded.

It is apparent that yet more work needs to be done to resolve some of the issues which remain in debate and clear up any sources of confusion following the agreement of the royal charter. But whatever the outcome may be, it is important to remember Leveson’s conclusion that much of the public’s trust in journalism and newspapers was lost after the events of last year and that the press had ‘wreaked havoc with the lives of innocent people’. It is necessary for the press to work towards rebuilding some of that trust.

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