THE GOVERNMENT’S CONSULTATION ON THE LEVESON INQUIRY AND ITS IMPLEMENTATION

The Government ran a consultation on two issues relating to the Leveson Inquiry from 1 November 2016 to 10 January 2017. The Government sought views on:

• Section 40 of the Crime and Courts Act 2013; and
• Part 2 of the Leveson Inquiry.

The PRP’s work, role and remit relate only to the section 40 element of the consultation, so we restricted our response to that area.

When we published our first annual report on the recognition system in October 2016, we stated that section 40 should be commenced in England and Wales. This continues to be our view and we submitted our report as part of our consultation response.

Commencement of section 40 would complete a system that will:

• Protect ordinary people, not just the rich;
• Protect the press and other news publishers from the chilling effect of large legal costs; and
• Remove political influence on the regulation of the press and other news publishers.

Our consultation response provides the background and detail to these essential public benefits.

A key recommendation of the Leveson Report was the creation of a ‘genuinely independent and effective system of self-regulation’. Lord Justice Leveson explicitly identified the need for incentives for publishers to join such a system. The recognition system was created by Parliament in response.

The recognition system’s two parts are designed to work together, and in their entirety. The system is not complete without both parts:

1. The Royal Charter’s objective measures of a regulator’s independence and effectiveness. The Charter criteria are interlinked and a recognised regulator must meet them all. The Charter received cross party support.
2. Incentives for joining an approved regulator, which are provided by the relevant sections of the Crime and Courts Act. The Act was agreed by both Houses of Parliament.

If section 40 was implemented, it would complete the recognition system. The complete system:

• Provides objective measures of independence and effectiveness. Regulators can choose to be assessed against the criteria and be recognised, if they meet all of them.
• Gives affordable access to justice to ordinary people. This would be achieved either through an approved regulator’s arbitration system or, if a publisher chose not to join an approved regulator, through protecting ordinary people from incurring legal costs.
• Encourages and enhances freedom of speech by protecting publishers against costs of legal challenge by the wealthy or by organisations that seek to stifle publications. By joining an approved regulator, other than in exceptional circumstances, publishers would not have to pay the legal costs of a claimant who chose to take them to court and won, rather than going through the approved regulator’s Charter-compliant arbitration system.

Yes. The recognition system applies to all print and online news publishers who can be sued for what they publish in England and Wales. That includes publishers who have joined IMPRESS and would apply to those who have joined IPSO. It would also include many others, such as the high profile online news publishers with substantial readerships, who have joined neither body. The recognition system applies to online publications.

The recognition system is intended to protect publishers against legal costs and to give ordinary people who have legitimate grievances with the press and other news publishers, affordable access to justice. Arbitration as specified within the Charter criteria would provide the public with an affordable alternative to court action.

Currently, all publishers face serious financial risk if they are sued by a wealthy litigant, a risk that is particularly serious for small local publishers with modest or precarious revenues. Section 40 would protect all publishers who chose to join a recognised regulator from this threat, therefore giving protection to those, such as small local publishers, who face the greatest risk from legal action.

No. Providing access to low-cost arbitration is not enough to secure the public interest and provide the protections intended by the Leveson recommendations. All 29 of the Charter criteria must be met as the minimum for the press and other news publishers to be deemed responsible and accountable.

No. The recognition system includes specific protection for local and regional publishers to avoid causing them financial hardship.

No. Any Charter-compliant arbitration scheme must include a mechanism that allows for claims to be struck out if they are brought on frivolous or vexatious grounds. A further filter allows an approved regulator to charge a small administration fee for initially assessing an application for arbitration.

Arbitration is an alternative to taking claims against publishers through the courts. A claimant would therefore need to have an arguable case in law to be offered arbitration, related to the very specific list of potential claims set out in section 42 of the Crime and Courts Act.  Arbitration should therefore not be confused with a regulator’s complaints system, which remains the only process by which complaints related to breaches of the relevant standards code can be addressed.