Leveson Report

[Pabmusic]

What do you intend by the 'freedom of the press'? How would you define it?

Indeed. It is in many ways a meaningless concept. There is no guarantee of press freedom in British law (as there is, for instance, in the US Constitution) and the usual description is that we have 'residual' freedoms - what is left when we have complied with the law. The European Convention on Human Rights says (Article 10) says:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

That is the closest we get to a constitutional position. So it's really a balancing act between the exercise of a freedom that carries "duties and responsibities", and restrictions that are "necessary in a democratic society" for a host of reasons.

[french frank]

It is very easy to say that both these liberal principles can be accommodated, but I am not at all convinced that a way can be found to do it. A "balance" implies to me that neither principle is going to be 100% upheld. To me, the greater danger is not being able to hold politicians to account. I would not be content with a "balance" that endangers this.

So you would err in favour of transgressing journalists? You wouldn't mind them bribing officials and publishing information obtained by such bribery, as long as it was the officials who were prosecuted?

You wouldn't recognise the validity of a D-Notice issued by any government in any circumstances?

You wouldn't recognise the any of the conditions cited by pabmusic in the para. 2 "subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary"?

What else could "100%" freedom of the press mean but that you would allow them to do all the things that were being condemned during this inquiry?

[David-G]

You are putting words into my mouth. I am not against an attempt at independent regulation. I am very wary about statutory regulation, for the reasons I stated before.

I am amazed at the general complacency that it doesn't matter to us if the Press is shackled. It matters very much.

[ahinton]

I am not the first here to suggest that perhaps either the remit or outcome or both of the Leveson inquiry has perhaps concentrated unduly on the media itself as distinct from the law and the rôles of the police, the judiciary and Parliament. Whilst the subject quite simply has vastly too many ramifications for me to be able to determine which solution might be the best and most practical, my instinctive suspicion of knee-jerk regulatory implementation (whether statutory per se or with the arm's-length support of Parliament), degenerating as it does all too often and easily into over-regulation and then into the mere exercise of punitive power by a regulator over the regulated - not to mention regulatory régimes overseen and policed by those with insufficient competence - is such as to prompt me to incline towards resistance to the introduction and implementation of massive new regulatory powers.

Why? Because we already have laws, police, Courts and a judicial system so, when a media organisation falls foul of any of those laws (which admittedly are not set in stone any more than they should be, because circumstances and experience prompt constant revision and expansion of laws and legal frameworks), due legal process ought to suffice to help to put matters right and, as I suggested earlier, perhaps there is an argument in favour of Courts being granted greater punitive powers over transgressors in order to try to persuade those who seek to publish or broadcast sloppy, inaccurate or sensationalist journalism that they are taking greater risk in so doing than has been the case so far. Admittedly, this approach will risk upping the ante of expenditure, for due legal process in such matters - especially where massive compensatory awards might be made to victims - will hardly come without its seven- or even eight-figure price tag, but the prospect that it might nevertheless act with more than a modicum of success as a disincentive to the more careless and immoral of media organisations doesn't come without its appeal.

Imposing ever tighter regulation might provide to the concerned public the impression that the government has teeth and is doing something about the problem but, at the same time, it can provide no guarantee that there will be no future transgressions, any more than having a law against murder prevents murders taking place; since judicial process is already in place to address the latter, why not also the former?

[amateur51]

I am not the first here to suggest that perhaps either the remit or outcome or both of the Leveson inquiry has perhaps concentrated unduly on the media itself as distinct from the law and the rôles of the police, the judiciary and Parliament. Whilst the subject quite simply has vastly too many ramifications for me to be able to determine which solution might be the best and most practical, my instinctive suspicion of knee-jerk regulatory implementation (whether statutory per se or with the arm's-length support of Parliament), degenerating as it does all too often and easily into over-regulation and then into the mere exercise of punitive power by a regulator over the regulated - not to mention regulatory régimes overseen and policed by those with insufficient competence - is such as to prompt me to incline towards resistance to the introduction and implementation of massive new regulatory powers.

Why? Because we already have laws, police, Courts and a judicial system so, when a media organisation falls foul of any of those laws (which admittedly are not set in stone any more than they should be, because circumstances and experience prompt constant revision and expansion of laws and legal frameworks), due legal process ought to suffice to help to put matters right and, as I suggested earlier, perhaps there is an argument in favour of Courts being granted greater punitive powers over transgressors in order to try to persuade those who seek to publish or broadcast sloppy, inaccurate or sensationalist journalism that they are taking greater risk in so doing than has been the case so far. Admittedly, this approach will risk upping the ante of expenditure, for due legal process in such matters - especially where massive compensatory awards might be made to victims - will hardly come without its seven- or even eight-figure price tag, but the prospect that it might nevertheless act with more than a modicum of success as a disincentive to the more careless and immoral of media organisations doesn't come without its appeal.

Imposing ever tighter regulation might provide to the concerned public the impression that the government has teeth and is doing something about the problem but, at the same time, it can provide no guarantee that there will be no future transgressions, any more than having a law against murder prevents murders taking place; since judicial process is already in place to address the latter, why not also the former?

This was essentially the case for no additional legislation that was made by Private Eye editor Ian Hislop in his very individual evidence to the Inquiry. His considerable experience of libel litigation as an editor makes his evidence all the more compelling in my view.

http://www.telegraph.co.uk/news/uknews/leveson-inquiry/9020296/Leveson-Inquiry-Ian-Hislop-says-state-regulation-of-press-is-unnecessary.html

What is needed is what Leveson recommends - a beefed-up PCC entirely independent of current media people and Chaired by someone with some missionary zeal about cleaning up the Press's act while not cramping its style, and certainly not a self-inflated twerp like Christopher Meyer. It needs to be able to be pro-active and to be able to act swiftly so that aggrieved members of the puiblic can get access to justice in a reasonable time at a reasonable price.

[aeolium]

I think the problem with reliance on the operation of the civil and criminal law rather than regulation is that the former has been shown to be have serious shortcomings in the redress available to those damaged by the press. In the case of the civil law the press can afford much more high-powered and expensive lawyers than most individuals and it can be a daunting and risky process for anyone taking on the press - if the case is lost then the plaintiff could well be bankrupted by legal costs. In the case of the criminal law the police and CPS have shown themselves reluctant to prosecute (as in the 2009 Yates decision not to pursue the Guardian report that phone-hacking was much more extensive) and Leveson has shown that this was in part due to senior people within the police being much too close to parts of the press.

One thing I hope will be made clear as part of the independent regulation is that there is a codified public interest defence for publication, and this should be the public interest of society as a whole, not the government. A difficult area is where a publisher uses means which would normally contravene the regulatory code to publish a story where there is a strong public interest - e.g. government corruption or wrongdoing by multinational corporation. Should the public interest in publishing the wrongdoing override the breach of the code?

[ahinton]

This was essentially the case for no additional legislation that was made by Private Eye editor Ian Hislop in his very individual evidence to the Inquiry. His considerable experience of libel litigation as an editor makes his evidence all the more compelling in my view.

http://www.telegraph.co.uk/news/ukne...necessary.html

Well, I'm not so sure about that. Whilst Hislop's views and experience are to be ignored at the peril of those tempted to do it, my thoughts (I won't go so far as to claim them as my "view" for reasons already outlined above) are that what might be required is not new legislation but newly increased punitive powers vested in the Courts when truing cases under current legislation.

What is needed is what Leveson recommends - a beefed-up PCC entirely independent of current media people and Chaired by someone with some missionary zeal about cleaning up the Press's act while not cramping its style, and certainly not a self-inflated twerp like Christopher Meyer. It needs to be able to be pro-active and to be able to act swiftly so that aggrieved members of the puiblic can get access to justice in a reasonable time at a reasonable price.

I'm just not (yet?) convinced that this will do the trick, given that the inescapable fact that there will always be those prepared to risk transgression and trying to get into bed with - or otherwise dig up dirt on - the regulators, MPs, the police, the Courts and judiciary et al cannot but clarify that if some people think that the prize is worth the grabbing, they'll continue in their preparedness to flout laws and regulations; it will then be down to how easily each such transgression can be dealt with as it arises and I'm not so sure that a regulator will be any better at this than due process of law. I take your point about the often impossibly high cost of victims' access to justice but, since this will remain the case whether handling of such transgressions is down to regulators or the police and Courts, might there not need to be some kind of "fighting fund" set up by Parliament in either case in order to assist those victims that cannot afford to go to law, even if that might involve some procedure not unakin to the dragging of Legal Aid from its its coffin, dusting it off and trying to reinject some life into it?

[amateur51]

Well, I'm not so sure about that. Whilst Hislop's views and experience are to be ignored at the peril of those tempted to do it, my thoughts (I won't go so far as to claim them as my "view" for reasons already outlined above) are that what might be required is not new legislation but newly increased punitive powers vested in the Courts when truing cases under current legislation.


I'm just not (yet?) convinced that this will do the trick, given that the inescapable fact that there will always be those prepared to risk transgression and trying to get into bed with - or otherwise dig up dirt on - the regulators, MPs, the police, the Courts and judiciary et al cannot but clarify that if some people think that the prize is worth the grabbing, they'll continue in their preparedness to flout laws and regulations; it will then be down to how easily each such transgression can be dealt with as it arises and I'm not so sure that a regulator will be any better at this than due process of law. I take your point about the often impossibly high cost of victims' access to justice but, since this will remain the case whether handling of such transgressions is down to regulators or the police and Courts, might there not need to be some kind of "fighting fund" set up by Parliament in either case in order to assist those victims that cannot afford to go to law, even if that might involve some procedure not unakin to the dragging of Legal Aid from its its coffin, dusting it off and trying to reinject some life into it?

I like your idea of a fighting fund but would usually resist it because of the additionality argument in relation to Legal Aid. As that has now been seriously curtailed, I'd be interested in testing it out to see if a voluntarily donated fighting fund idea has legs or wings or whatever). The Joseph Rowntree Charitable Trust might be a good organisation around which to float such an idea.

http://www.jrct.org.uk/

[french frank]

Just a small point:

You are putting words into my mouth.

I wasn't claiming that you had said anything at all. Every sentence in #62 has a question mark after it. They were questions which arose from your statements, especially the one quoted in the post above:

It is very easy to say that both these liberal principles can be accommodated, but I am not at all convinced that a way can be found to do it. A "balance" implies to me that neither principle is going to be 100% upheld. To me, the greater danger is not being able to hold politicians to account. I would not be content with a "balance" that endangers this.

The "balance", referred to by Clegg, was between the rights of a free press ("the press gallery") and those of the private individual ("the public gallery"). I felt my questions legitimately stemmed from what you said: they were not not claiming that you had said them.

I am amazed at the general complacency that it doesn't matter to us if the Press is shackled. It matters very much.

Just another question: what is the difference - in your mind - between 'shackling' the Press and insisting that they stick to the laws which we all have to obey?

[On ahinton's point, rightly or wrongly/inadequately Leveson was about Media Ethics. As Lord Leveson pointed out, criminal investigations are proceeding and cannot be commented on.]

What we need is a free and independent press. Far from holding politicians to account, Leveson uncovered more about journalists and politicians in a "too cosy relationship". Leveson calls for a new law which places, "an explicit duty on the government to uphold and protect the freedom of the press.

Isn't independent regulation what Leveson proposes? Even an independent body has to have statutory powers vested in it.

[ahinton]

I like your idea of a fighting fund but would usually resist it because of the additionality argument in relation to Legal Aid. As that has now been seriously curtailed, I'd be interested in testing it out to see if a voluntarily donated fighting fund idea has legs or wings or whatever). The Joseph Rowntree Charitable Trust might be a good organisation around which to float such an idea.

http://www.jrct.org.uk/

It might, but what I had in mind was rather more along the lines of an incentive to restore Legal Aid to something where it can be made proper use of by those who need it most and have cause to make use of it.

Regulating the details of industrial practice is one thing but when that regulatory régime has sufficient punitive powers vested in it as to suggest competition with judicial process, I hear danger signals; it's as though judicial process isnt; good enough to deal with breaches of the law so there has to be a further level of "regulation" in order to ensure that such breaches do not slip through the legal net.

[Eine Alpensinfonie]

Even an independent body has to have statutory powers vested in it.

:ok:

[aeolium]

Regulating the details of industrial practice is one thing but when that regulatory régime has sufficient punitive powers vested in it as to suggest competition with judicial process, I hear danger signals; it's as though judicial process isnt; good enough to deal with breaches of the law so there has to be a further level of "regulation" in order to ensure that such breaches do not slip through the legal net.

The whole point is that judicial process is not currently good enough to deal with breaches of the civil law, and the police/CPS have been lax at dealing with breaches of the criminal law. You must know that legal aid has not been available for civil libel cases for a long time (if it ever was) and that the chance of it being made available for civil libel is nil. Would you, had you or a close relative been damaged by intrusive and inaccurate press coverage, really risk taking a civil libel case knowing that you would be exposed to the cross-examination of specialist libel lawyers and that failure could well mean bankruptcy?

The objective of the now widely discredited PCC was to provide some redress - without recourse to law - to those who had suffered from misconduct of the press, but its operation was supervised by the very press barons who were ultimately responsible for the abuse; it had no real punitive sanctions and the press could simply ignore its recommendations. Any regulatory system must have sufficient power and must be completely independent of the press. To have that power, as ff says, it needs statutory provision.

[Lateralthinking1]

The whole point is that judicial process is not currently good enough to deal with breaches of the civil law, and the police/CPS have been lax at dealing with breaches of the criminal law. You must know that legal aid has not been available for civil libel cases for a long time (if it ever was) and that the chance of it being made available for civil libel is nil. Would you, had you or a close relative been damaged by intrusive and inaccurate press coverage, really risk taking a civil libel case knowing that you would be exposed to the cross-examination of specialist libel lawyers and that failure could well mean bankruptcy?

The objective of the now widely discredited PCC was to provide some redress - without recourse to law - to those who had suffered from misconduct of the press, but its operation was supervised by the very press barons who were ultimately responsible for the abuse; it had no real punitive sanctions and the press could simply ignore its recommendations. Any regulatory system must have sufficient power and must be completely independent of the press. To have that power, as ff says, it needs statutory provision.

This makes compete sense to me. There is a direct parallel with Ombudsmen who are not truly independent either and where at most an outcome of a Judicial Review can only require them to look at a situation again. In that sense, someone is better off cutting out the middle man and instead taking immediate action against the perpetrator.

I am not sure if people can insure themselves against press intrusion and damage. However, in many aspects of life, the burden of responsibility for law breaking is effectively handed on by Government to insurance companies. As everyone pays insurance, the consequential increases in premiums are a form of stealth tax on every member of the public.

And whether or not insurance may ever be taken out to cover someone against press intrusion or damage, there are considerable costs to the taxpayer wherever there are systemic flaws of this kind. The Leveson Inquiry itself was a tax in that sense. We all paid for it. That is hardly surprising when tax often exists largely to address social injustice.

[ahinton]

The whole point is that judicial process is not currently good enough to deal with breaches of the civil law, and the police/CPS have been lax at dealing with breaches of the criminal law.

Is such laxity alone sufficient excuse to claim that the judicial process isn't up to dealing with civil law breaches? If indeed it isn't, then isn't it fundamentally failing us all in every area rather than just that of media transgessions of the kind investigated as part of the Leveson inquiry?

You must know that legal aid has not been available for civil libel cases for a long time (if it ever was) and that the chance of it being made available for civil libel is nil.

Of course I do and indeed said almost as much; my point was that geting rid of it was a grave mistake and that perhaps the current situation might amount to as good a reason as any to revive it and ensure that it is fit for purpose.

Would you, had you or a close relative been damaged by intrusive and inaccurate press coverage, really risk taking a civil libel case knowing that you would be exposed to the cross-examination of specialist libel lawyers and that failure could well mean bankruptcy?

I might well have to whether the matter was to be dealt with by a regulator or by the Courts; in most cases when, for example, a complainant rejects an Ombudsman's decision against his/her complaint, he/she can take the matter to Court but it will cost as much as it would have done had it not first have been taken to the Ombudsman. Similarly, therefore, if a regulator charged with policing the kinds of media law infringement issues that would otherwise end up in Court finds against the complainant unreasonably (if, for example, its investigation were to have been carried out with insufficient competence and diligence), what then? other than taking the matter to Court and perhaps even taking the regulatory organisation to Court instead or as well, which would be even more expensive (and perhaps impossible if the statutory immunity from prosecution accorded to FSA under the Financial Services and Markets Act 2000 were to apply to it as well).

The objective of the now widely discredited PCC was to provide some redress - without recourse to law - to those who had suffered from misconduct of the press, but its operation was supervised by the very press barons who were ultimately responsible for the abuse; it had no real punitive sanctions and the press could simply ignore its recommendations. Any regulatory system must have sufficient power and must be completely independent of the press. To have that power, as ff says, it needs statutory provision.

Indeed - which would effectively mean that it would have to have powers vested within it that are broadly analogous to those vested with the Courts and judicial system, so why have a regulatory "Court" for media law breach cases and the ordinary Courts for all other breaches of law, especially when such a duplication is likely to give rise to even greater expense and greater likelihood of confusion?

[ahinton]

This makes compete sense to me. There is a direct parallel with Ombudsmen who are not truly independent either and where at most an outcome of a Judicial Review can only require them to look at a situation again. In that sense, someone is better off cutting out the middle man and instead taking immediate action against the perpetrator.

In my experience, Judicial Review of an Ombudsman's decision cannot even require an Ombudsman to review his/her decision per se but merely consider whether that decision was arrived at lawfully and as a consequence of following correct legal procedure; Judicial Review can overturn an Ombudsman's decision but only if and because it has not been arrived at in accordance with those guidelines.

That said, what action can be taken "against the perpetrator" other than going to Court?

I am not sure if people can insure themselves against press intrusion and damage. However, in many aspects of life, the burden of responsibility for law breaking is effectively handed on by Government to insurance companies. As everyone pays insurance, the consequential increases in premiums are a form of stealth tax on every member of the public.

I don't know; I imagine that some business insurance policies might cover this kind of eventuality but I'm not so sure about individuals' policies; many household policies do include legal expenses cover for eventualities above and beyond the household cover otherwise provided under the policy, but whether this would customarily extend to matters of this nature I'm not sure.

And whether or not insurance may ever be taken out to cover someone against press intrusion or damage, there are considerable costs to the taxpayer wherever there are systemic flaws of this kind. The Leveson Inquiry itself was a tax in that sense. We all paid for it. That is hardly surprising when tax often exists largely to address social injustice.

How else would you have gone about this, then? No inquiry would have saved the taxpayer money but achieved no recommendation. Whilst you are undoubtedly correct in stating that "there are considerable costs to the taxpayer wherever there are systemic flaws of this kind", I do rather think that your following claim that "tax often exists largely to address social injustice" is an improbably idealistic one that rarely if ever justifies itself in practice.