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A year on from the close of the Leveson Inquiry and the publication of its findings, Edward Craven of Matrix Chambers, considers the impact of the inquiry and the ways in which its influence is shaping press regulation.
What real changes have come about since the close of the Leveson Inquiry?
So far there have been relatively few concrete legal changes, although important developments are in the pipeline in a number of areas. For example:
Is there still momentum for changing the way the press is regulated in the UK?
Though reform of press regulation is fiercely contentious, no one doubts that fundamental change will eventually take effect. The Privy Council is currently considering rival proposals submitted by a group of the UK's largest news organisations and a cross-party alliance of parliamentarians. Both sides are prepared for a protracted fight, including the prospect of litigation.
Some of the legal groundwork has already been laid. Under the cross-party model, the press would establish their own independent regulator overseen by an independent 'recognition panel' established by Royal Charter. Alongside this, the Crime and Courts Act 2013 will exempt news publishers from paying exemplary damages if they sign up to an 'approved regulator'--a legal carrot and stick to encourage publishers to join an independent regulator that meets certain minimum standards.
At the same time, a consortium of major news publishers has taken steps to set up a new Independent Press Standards Organisation (IPSO) with beefed-up powers of oversight and enforcement. A draft constitution has been published and is being considered by over 200 newspaper/magazine publishers.
What does the summary of responses to the ICO consultation tell you about the future role of the ICO?
The Leveson Report made a number of proposals regarding the ICO. These included a recommendation that the ICO should issue 'practical guidance' designed to 'support the press in improving standards and practice in the handling of personal information' as well as 'advice and guidance to the public and to people who are concerned about being the victims of unlawful or unethical media practice'.
In March the ICO held a consultation to consider the best way to provide that guidance. The responses showed a clear preference for good practice guidelines rather than a formal code of practice. The objections to a formal code were threefold.
Respondents were concerned--despite the ICO's insistence to the contrary--that a code might alter the existing legal obligations under the Data Protection Act 1998.
The respondents were concerned about how a code would interact with established editorial guidance such as the Ofcom Broadcasting Code or the Editor's Code of Practice.
Role as a regulator
There was a more general anxiety about the prospect of the ICO becoming a de facto regulator of the press.
The consultation responses reflected deep misgivings about expanding the role of the ICO. The ICO is clearly sensitive to those worries. In his response to the Leveson Report, the Information Commissioner said the proposals would 'move the ICO closer to becoming a mainstream statutory regulator of the press', adding that 'the significance of the proposed changes should not be underestimated' and was 'ultimately a matter for Parliament'. For the moment, therefore, the ICO's future role is uncertain.
Which has had a greater impact, the criminal investigations or the discussions around regulation?
The criminal investigations called time on a range of murky practices apparently commonplace in some parts of the media. However the debate around regulation will set the framework for press oversight for years to come--a framework that will apply to all journalists, not just the minority tempted to engage in criminal law-breaking. In the long term, the regulatory discussions will have the greater impact.
Who have been the winners and losers of the Leveson inquiry?
There were certainly more losers than winners. For the victims of unlawful press intrusion, the Leveson Inquiry was an important opportunity for public catharsis and a chance to set the record straight. But for every 'winner' there was a cast of pantomime villains, as the inquiry laid bare wrongdoing and excessively cosy relationships between police, politicians and journalists.
Much of the inquiry's coverage was unremittingly hostile. However, with the press in the dock there was an inevitable danger of overlooking the vital role responsible journalism plays in our society. An irony of the anti-media backlash that precipitated the inquiry was the role that dogged investigative journalism played in exposing the scale of phone hacking at the News of the World. Recent revelations about US and UK surveillance operations provide a timely reminder about the press's vital function in holding governments to account and probing the darker recesses of state power--a role sometimes forgotten amid the Leveson furore.
What are your predictions on the future of press regulation in the UK?
It's very hard to say. The discredited Press Complaints Commission is winding down ready to make way for a new regulatory body. Detailed proposals reflecting very different visions for press regulation have been put forward and are being debated intensively. Public clamour for fundamental change has abated in the months following the publication of the Leveson Report, but the political appetite for reform is still there. The ball is now in the Privy Council's court. One thing is certain--this is a process with some way to run.
Interviewed by Sarah Perry.
This post was originally published in Lexis®PSL IP&IT on 03 September 2013.
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