How would the independence of Leveson’s regulator be guaranteed?

An independent regulatory body should be established, with the dual roles of promoting high standards of journalism and protecting the rights of individuals.(Leveson Report, Executive Summary, Section 57, page 14, emphasis added)

My earlier article summarised Leveson’s proposals with respect to this body, the aim of this article is to examine the question of how independence is to be achieved. As the executive summary makes clear, the new body should be independent of both the press, MPs and the government. Leveson proposes to achieve this by:

  • Ensuring that a majority of the board are “independent” of the press with no serving editors, MPs or members of the government on it.
  • Requiring the appointments panel to have a “substantial majority” of members independent of the press, and no more than one current editor of a publication that could be a member to be on the panel.
  • Restricting the role of legislation to that of specifiying a process for recognising the regulator (via a recognition body) and certifying that it meets certain criteria laid out in statute.
  • The recognition body will not play any role in regulation of the press.
  • Leveson suggests Ofcom as the recognition body.

Thus we can envisage the following happening if Leveson were implemented in full:

  • Legislation is drawn up specifying the criteria for recognising the press regulator, granting the status of recognition body to Ofcom.
  • MPs will debate and vote on this legislation.
  • Once enacted, Ofcom will set up the appointments panel and they will appoint the board of the press regulator, in accordance with the legislation specifying the criteria by which both the panel and the board are to be appointed.
  • The press regulator, having been set up would oversee drawing up code of conduct, agree funding arrangements with the press, whilst the press would join the regulator based on the benefits Leveson sets out.

The level of independence achieved can thus be described as “operational independence” – its decisions about the code of conduct, whether a member has violated the code, whether to investigate violations of the code and what punishments to apply would be made by the board or by the arbitration service. However MPs will determine the criterion by which the regulator is judged and recognised when they legislate, and Ofcom will be charged with putting these criterion into practice and e.g. whether all “significant news publishers” have become members.

It seems to me this means that the regulator will be no more “independent” of the government than any other quango. It may have operational autonomy, but its role is still determined by MPs. Can we trust the MPs not to frame the criterion by which the regulator operates in a manner that protects their own interests?

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How Leveson’s press regulator would work

On Thursday, the long awaited report of the Leveson inquiry into the “culture, practice and ethics of the press” was published. Based on reading the executive summary, Leveson proposes:

  • an “independent self regulatory” body be established to:
    • promote high standards of journalism and protect the rights of individuals
    • be responsible for a code of conduct for all subscribers, including requiring them to have fast complaints procedures, plus appropriate, transparent internal governance processes.
    • be advised on the code of contact by a code committee that can include serving editors.
    • hear and complaints, with serving editors being barred from advising the board on such complaints
    • provide a low cost arbitration service related to civil claims in relation to breaches of the code of conduct
    • have the power to investigate serious or systemic breaches of the code of conduct by subscribers
  • the board of the regulatory body would comprise:
    • a majority of people independent of the press
    • “sufficient” people with experience of the industry but not including serving editors, MPs or members of the government.
  • the board would be appointed in a “fair and open” process by an appointments panel that itself would be independent of the press and the government. Leveson proposes that the panel be established by Ofcom
  • whilst membership of the body would be voluntary, Leveson envisages that all “significant news publishers” would subscribe to the the new body. In the event of failure for this to happen he suggests Ofcom could operate as a backstop regulator
  • the main incentive for publishers to subscribe to the body would be the provision of low cost arbitration which should be cheaper than going to court in the event of disputes
  • according to recommendation 8: “the code must take into account the importance of freedom of speech, the interests of the public (including the public interest in detecting or exposing crime or serous impropriety, protecting public health and safety and preventing the public from being seriously misled) and the rights of individuals. Specifically, it must cover standards of:(a) conduct, especially in relation to the treatment of other people in the process of obtaining material; (b) appropriate respect for privacy where there is no sufficient public interest justification for breach and (c) accuracy, and the need to avoid misrepresentation.”
  • Leveson also suggests consideration be given to amending the code of conduct to equip the regulator “with the power to intervene in cases of allegedly discriminatory reporting, and in so doing reflect the spirit of equalities legislation” (recommendation 38).
  • The role of legislation in all this is restricted to:
    • enshrining a legal duty for the government to uphold the freedom of the press
    • providing “an independent process to recognise the new self-regulatory body and reassure the public that the basic requirements of independence and effectiveness were met and continue to be met” (a role leveson suggests would be given to Ofcom)
    • “by recognising the new body, it would validate its standards code and the arbitral system sufficient to justify the benefits in law that would flow to those who subscribed”
    • Leveson summarises: “What is proposed here is independent regulation of the press organised by the press, with a statutory verification process to ensure that the required levels of independence and effectiveness are met by the system in order for publishers to take advantage of the benefits arising as a result of membership.” (section 73)
  • Leveson emphasies that the legislation would not establish the new regulatory body itself or give rights to the regulatory body, parliament or the government to prevent material being published or to require material to be published, except that the regulatory body would be able to require corrections and apologies to be published and direct how such corrections or apologies are placed.

It seems to me this raises quite a few questions such as:

  • how independent can the body really be?
  • when would a web based site (e.g. a blog) be considered a “significant news publisher”?
  • won’t web based publishing undermine this, if only because web based publishers can easily be based outside the jurisidiction of British laws let alone the regulatory body?
  • given that the the press would be held to a code of conduct rather than merely be required to obey the law, isn’t there an inherent threat to freedom of speech there?
  • will this setup actually stand a chance of addressing the problems Leveson was set up to address, namely the lying, disregard for accuracy, invasion of privacy for trivial reasons, intimidation and cosy relationships with politicians and police?

I intend to comment on these questions in later posts.

Mohammed Cartoons controversy still making headlines

[HatTip: LimbicNutrition]

B92 reports:

DUBLIN — Irish police arrested seven Muslims for planning to kill a Swedish cartoonist who drew a caricature of the Prophet Muhammad with a dog’s body.

In response, several Swedish papers reprinted the cartoons on Wednesday.

Several Swedish newspapers on Wednesday reprinted a controversial caricature of the Prophet Mohammed as a dog, the day after an alleged plot to murder the cartoonist was disclosed.

Stockholm tabloid Expressen said it decided to reprint the caricature “in support of freedom of speech.”

An editorial in the Dagens Nyheter daily said a “threat against (the cartoonist) is ultimately a threat against all Swedes.”

Irish police on Tuesday arrested four men and three women who they say planned to kill Lars Vilks. The Swedish cartoonist in 2007 drew a caricature of Prophet Muhammad’s head attached to the body of a dog to illustrate a newspaper editorial about freedom of expression and religion.

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EU court ends protection of press sources.

As noted by both Samizdata and the EU referendum blog, the Telegraph has reported a disturbing development in EU law, whereby the European Court has made a ruling that will seriously undermine investigative journalism.

The case concerns Hans-Martin Tillack, a journalist whose articles for Germany’s Stern magazine have exposed fraud and corruption in the EU, relying on inside testimony. Tillack’s computer, address books, telephone records and 1000 pages of notes were obtained by the European Commission, after being seized by Belgian police acting on EU instructions. By perusing the information held by these, the Commission could find out who Mr Tillack’s sources were.

Mr Tillack had been arrested in March and held incommunicado for 10 hours, for allegedly bribing an official to obtain internal EU documents. However, according to the Telegraph, leaked EU anti-fraud office documents have since shown the allegation was concocted by two European Commission spokesmen.

Mr Tillack filed a lawsuit at the European Court, backed by the International Federation of Journalists to block commission access to his records on the grounds that it was a flagrant violation of European Convention law for press protection, established over decades.

However the European Court has ruled against Mr Tillack on the grounds that the case was a strictly Belgian matter! Yet the request for the arrest was made by the EU and the European Commission had been shown to have orchestrated the raid from the start.

The bottom line is that the European Court has backed the European Commission in a blatant attempt to seize a journalist’s documents in order to find out their sources. For anyone else considering investigating or exposing corruption in the European Commission, or elsewhere in the EU, this is a rather chilling development.

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