Index fears recognition of Impress could stifle investigative journalism and threaten press freedom

Index on Censorship welcomes the delay in the Royal Charter recognition of Impress by the Press Regulation Panel and hopes it provides an opportunity for further consultation. We are extremely concerned that recognition of Impress has the potential to introduce punitive measures for small publishers and to stifle investigative journalism. We are also concerned that about the transparency of its funding. These are factors that threaten freedom of the press.

We hope the decision today gives an opportunity for a rethink.

Index remains concerned that, aside from the Royal Charter, other elements of legislation introduced in the wake of the Leveson Report represent a threat to media freedom. One of the most worrying of these is Section 40 of the Crime and Courts Act 2013, which sets out that an organisation which does not join a recognised regulator but falls under its remit (through being considered a “relevant publisher”) will potentially become subject to exemplary damages should they end up in court, and could also be forced to pay the costs of their opponents.

Such measures could be especially punitive for small publishers and news organisations with limited financial means.

There are two principles here that threaten a free press. Firstly, that in effect joining a regulator becomes less than voluntary if you have the threat of punitive damages hanging over your head. Secondly, that those who do not join and therefore feel under threat of exemplary damages will skirt away from controversial subjects and investigative journalism, and opt instead for “safe” stories.

Such measures could be especially punitive for small publishers and news organisations with limited financial means. This has a damaging effect on free expression. Supporters of this aspect of the act argue that exemplary damages would only apply to “reckless” action by journalists, but it is possible that a court could find that a breach of Article 8 rights to privacy and reputation was by definition “reckless” even when a journalist was pursuing an investigative news story in the public interest.”

Impress said in January it would accept donations of £3.8 million to cover the first four years of expenditure, which have been reported as coming almost exclusively from The Alexander Mosley Charitable Trust. The organisation’s own website provides only scant information about its current funding.

Although Impress has said it would not “be beholden to anyone” and that a charity would act as “buffer” between any donor from which it receives funds, the idea that a single wealthy individual should control the purse strings for a supposedly independent regulator should strike fear into the hearts of those who believe in a free press.

Index, a small publisher since 1972, has not signed up to a regulator.

21 October 2016: An earlier version of this article incorrectly stated that section 42 (3) of the Crime and Courts Act sets out that an organisation under its remit could be subject to damages if it does not join a recognised regulator.

Index on Censorship response to the IMPRESS consultation

November 2014 (PDF)

As a UK-based organisation dedicated to the promotion of free speech and elimination of censorship worldwide, Index on Censorship is pleased to have the opportunity to provide feedback on the documents that proposed press regulator IMPRESS has drawn up ahead of its formal launch. Index also made written and oral representations to The Leveson Inquiry on the culture, practice and ethics of the press.

IMPRESS asked specific questions, to which Index has responded below. Our comments should be in no way seen as an endorsement – or indeed – a rejection of IMPRESS.

1. Do these documents meet the criteria set out in the Leveson Report, as distilled in the Royal Charter on Self-Regulation of the Press, for an independent and effective regulator? How might they be improved in this respect?

These documents reflect in large part the criteria set out in the Leveson Report and even more closely the requirements outlined in the Royal Charter on Self-Regulation of the Press, particularly on the important question of redress through swift and transparent complaints and arbitration procedures.

However, Index remains concerned that the independence and efficacy of a regulator will not be guaranteed by seeking recognition from an oversight body established by Royal Charter. A Royal Charter – though arcane – remains a political instrument. Royal Charters are established by Her Majesty’s Most Honourable Privy Council, the bulk of whom are politicians, including serving members of government. Though we accept that the Recognition Panel is conceived in a way that is intended to demonstrate absolute independence from government control, the establishment of an oversight
body through such an obscure piece of political machinery is not a mechanism likely to inspire the public trust and confidence required by the public. The whiff of undemocratic, non-transparent political involvement in the creation of the regulatory body has tainted it from the outset.

As the Privy Council says on its own website: “…once incorporated by Royal Charter a body surrenders significant aspects of the control of its internal affairs to the Privy Council. Amendments to charters can be made only with the agreement of the Queen in Council, and amendments to the body’s by-laws require the approval of the Council (though not normally of Her Majesty). This effectively means a significant degree of Government regulation of the affairs of the body, and the Privy Council will therefore wish to be satisfied that such regulation accords with public policy.” (our italics)

There is little clear evidence that the Recognition Panel, as currently conceived, would restore public trust in the British press, or indeed behave in a way that would hold a regulator successfully to account, as scandals involving the oversight of other independent regulators, such as the Care Quality Commission, have shown. A study by the Media Standards Trust has shown that more than 70% of the public believe that it is important that a new system of press self-regulation is periodically reviewed by an independent commission, but it is by far from clear that the public believes that this should be a Recognition Panel established by Royal Charter. An opinion poll conducted by Survation in April 2013 found that 67% of those surveyed concurred with a statement that any regulatory system should be set up ‘in a way that does not give politicians the final say if and when changes need to be made’.

In addition, Index remains concerned that, aside from the Royal Charter, other elements of legislation introduced in the wake of the Leveson Report represent a threat to media freedom. One of the most worrying of these is section 42 (3) of the Crime and Courts Act 2013, which sets out that an organisation which does not join a recognised regulator but falls under its remit (through being considered a “relevant publisher”) will potentially become subject to exemplary damages should they end up in court, and could also be forced to pay the costs of their opponents.

There are two principles here that threaten a free press. Firstly, that in effect joining a regulator becomes less than voluntary if you have the threat of punitive damages hanging over your head. Secondly, that those who do not join and therefore feel under threat of exemplary damages will skirt away from controversial subjects and investigative journalism, and opt instead for “safe” stories.

Such measures could be especially punitive for small publishers and news organisations with limited financial means. This has a damaging effect on free expression.

Supporters of this aspect of the act argue that exemplary damages would only apply to “reckless” action by journalists, but it is possible that a court could find that a breach of Article 8 rights to privacy and reputation was by definition “reckless” even when a journalist was pursuing an investigative news story in the public interest.

2. Do these documents (in particular the ‘sunset clause’ in the Mem & Arts) serve to protect the regulator’s independence from potential interference by politicians or civil servants? How might they be improved in this respect?

The memorandum and articles skirt around the issue of whether IMPRESS would seek recognition under the charter although it is made clear in other documents that IMPRESS would seek recognition. For the reasons outlined above, Index believes that IMPRESS should not seek recognition under the Royal Charter and that a robust ethics code, financial independence, and demonstrations of efficacy (i.e. participants shown to be held to account; swift and cheap arbitration) are the only ways in which the independence of the regulator will be truly demonstrated.

3. Do these documents serve to protect the regulator’s independence from potential interference by subscribing publishers? How might they be improved in this respect?

It is unclear from the documents supplied by IMPRESS what precisely the relationship would be between the funding mechanisms for IMPRESS and the regulator itself. The implication of the documents is that the regulator would be funded by participants (as with IPSO) but (unlike IPSO as currently envisaged) these participants would have no further role in setting the agenda for IMPRESS or carrying out its duties.

Complete transparency over the regulator’s funding is vital for its success. The agreement between participants and regulators should state explicitly that the funders can have no role whatsoever in the operations of IMPRESS or in its decision-making. Clear and total separation between the funding of the regulator and the regulator itself is vital to ensure press freedom.

The IMPRESS website identifies a number of current funders of IMPRESS but no details are given outlining the expected cost of running the regulator or the regulator’s financial plans. This raises the question of how the body can ensure it will be adequately funded — and therefore its long-term sustainability — should participants decide, for whatever reason, that they are no longer happy with the decisions being taken by IMPRESS. This should be clarified, along with greater detail on the projected cost of the regulator and its intended sources of income.

One mechanism that could help improve public confidence in the industry as a whole might be to make subscription open to individual journalists. This would mean the public could be assured that the body represents the press as a whole and would help IMPRESS to cover a fuller range of publishers who might be covered by the Crime and Courts Act.

4. At the same time, do these documents serve to give subscribing publishers confidence in the regulator’s operations? How might they be
improved in this respect, without compromising the regulator’s independence from the news industry?

It is unclear from the documents provided by IMPRESS whom it considers to be a likely member. The Crime and Courts Act sets out four cumulative criteria which must be met by a publisher to satisfy the definition of relevant. A publisher must:

. Publish “news-related material” (see below)
. Publish “in the course of a business” (whether or not carried on with a view to profit)
. [Produce material] “written by different authors”, and
. [which is] “subject to editorial control” (over the content of material, presentation
and the decision to publish).

Schedule 15 of the Act exempts publishers including broadcasters, public bodies, charities, micro businesses, and those who publish special interest titles, scientific and academic journals, company news publications, and books. But as English PEN has shown (‘Who joins the regulator: A report on the Crime and Courts Act on publishers’), a number of small publishers may nevertheless be caught in the net and there remains a “dangerous” level of uncertainty about the definition of “relevant”. Index has serious concerns that the implication of this, as detailed above, is a restriction on
investigative and challenging journalism.

5. Do these documents provide clarity about the regulator’s procedures? How might they be improved in this respect?

More clarity in the Procedures document regarding; the internal ombudsman; the complaints handling procedure; and conditions of joining, would be welcome. In its prospectus, IMPRESS states: “The regulator will not receive complaints directly unless or until the internal complaints system has been engaged without the complaint being resolved in an appropriate time.”

6. Do the IMPRESS/CIArb Arbitration Rules serve to give potential litigants in a relevant action confidence in the scheme’s capacity to provide access to justice? How might they be improved in this respect?

Index would suggest that IMPRESS consider the Alternative Dispute Resolution mechanisms outlined in the submission by the Alternative Libel Project, a collaboration between Index on Censorship and English PEN, which include suggestions on Early Neutral Evaluation. Details can be found here.

In conclusion, Index welcomes attempts by all the sides of the press to better self-regulate in ways that both protect the independence of the media and the free speech rights of the broader public. However, we remain opposed to the Recognition Panel as established by Royal Charter as the mechanism through which oversight of any regulator should be achieved, and deeply concerned that punitive measures such as exemplary damages negate any notion of a recognised regulator being voluntary.

This material can also be found in PDF here.

Index welcomes WAN-IFRA report on UK press freedom

Index welcomes the report by the World Association of Newspapers and News Publishers (WAN-IFRA) on the worrying state of press freedom in the UK. The WAN-IFRA report criticises the use of national security concerns to threaten and restrict investigative journalism, in particular the Guardian’s revelations and reporting on the Snowden mass surveillance scandal. WAN-IFRA also provides detailed analysis of the post-Leveson debate about press regulation, and challenges in particular both the involvement of politicians in the Royal Charter approach, the use of exemplary damages enshrined in statute for those who do not participate in a “voluntary”, Royal Charter-compliant press regulator, and the failure to bring the print industry on board in the final discussions around the Royal Charter.

Index CEO, Kirsty Hughes, said: “It is a sad day when the state of press freedom in Britain is so degraded that an international mission of editors and journalists finds so many concerns – from mass surveillance to politicians intervening in press regulation to national security being used to trump investigative journalism.”

She went on: “Index hopes that politicians from all parties will read and take very seriously this damning report – it should be a wake-up call to all those who see a free press as fundamental to our democracy.”

This statement was posted on 19 March 2014 at indexoncensorship.org

Life After Leveson: The UK media in 2014

The Leveson Report is Published

Britain has always had a complicated relationship with the free press. On the one hand, Milton’s Apologia, Mill’s On Liberty, Orwell’s volleys at censorship and propaganda.

On the other hand, there is a sense that journalists, editors and proprietors are at best incompetent and at worst genuinely venal people whose sole interest is making others miserable.

This ambivalence carries over into the political debate about the media, and the laws and regulations governing the press and broader free speech issues. All British politicians pay lip service to free speech, but the records of successive governments have been far from perfect. For every success, there is a setback.

This paper will provide a brief overview of the state of media freedom in the UK today

Press regulation and the Royal Charter

The Leveson Inquiry into the press reported in November 2012, with numerous recommendations on how press regulation should proceed. After months of negotiation led to deadlock over the issue of a “statutory backstop” to a regulator, in April 2013 the government attempted to resolve the issue, publishing a draft of a “Royal Charter” for the regulation of the press. In spite of the newspapers’ attempt to put forward their own competing royal charter, the Privy Council officially approved the government version in October 2013.

While the government and supporters claim that this is insulated from political interference, requiring consent of all three main parties in both houses (as well as a 2/3 majority) before the charter can be altered, critics say that royal charters, granted by the Privy Council, are essentially still political tools.

But how did we get to this point?

The Leveson Inquiry was called in response to the phone hacking scandal which gripped the country in 2010 and 2011. Journalists and contractors for News of the World, News International’s hugely successful Sunday tabloid, were alleged to have hacked the voice message of 100s of people, most notoriously murdered schoolgirl Milly Dowler. Several criminal trials of senior News International figures continue at time of publication.

As allegations of dubious behaviour began to be made against other papers, judge Sir Brian Leveson was charged with leading an inquiry into the industry. The inquiry, which opened in late 2011, heard from a huge range of people, from celebrities to civil society activists.

An increasingly polarized debate has seen the newspapers lined up on one side, opposed to the current Royal Charter, and campaign group Hacked Off, as well as the major political parties, on the other. The newspapers plan to set up their own regulator, the Independent Press Standards Organisation, which may not seek recognition under the Royal Charter. It is claimed that IPSO will be operational by 1 May. This would be funded by the newspapers, with representation from the industry on its governing bodies.

Hacked Off and their supporters, who claim to represent the interests of victims of phone hacking and press intrusion, say that the newspapers cannot “mark their own homework”, and insist that any regulator must be “Leveson compliant” and recognised under the Royal Charter.

There have been confusing political signals. While Culture Secretary Maria Miller suggested that IPSO, if it functioned well, may not need to apply for recognition, the Prime Minister David Cameron told the Spectator magazine that he believed that the Royal Charter was the best deal the press would get, and that publishers should sign up lest a more authoritarian scheme be introduced.

Index on Censorship has opposed the Royal Charter and supporting legislation on several grounds.

– Changing the Royal Charter While supporters claim the Royal Charter cannot, practically, be changed by politicians, Index believes it would be possible to gain the two-thirds majority required in both houses to alter it, particularly if there were to be another hacking-style scandal. The Privy Council is essentially a political body, and recognition by royal charter a political tool.

– Exemplary damages The Crime and Courts Act sets out that an organisation which does not join the regulator but falls under its remit will potentially become subject to exemplary damages should they end up in court. In addition, even if they win, they could also be forced to pay the costs of their opponents. While it is claimed that membership of a regulator with statutory underpinning is voluntary, it is clear that there are severe, punitive consequences for those who remain outside the regulator. There is controversy over whether this is compatible with the European Convention on Human Rights.

The imposition of exemplary damages is likely to have a strongly chilling effect on freedom of expression – this could be particularly felt by already financially squeezed local publications and small magazines.

– Corrections The Royal Charter proposes the regulator will be able to “direct” the wording and placement of apologies and corrections. This is an effective transfer of editorial control. It represents a level of external interference with editorial procedures that would undermine editorial independence and undermine press freedom. A tougher new independent regulator could reasonably require corrections to be made, but directing content of newspapers is a dangerous idea.

– Scope The Royal Charter is designed, in its own words, to regulate “relevant” publishers of “news-related material”. It sets out a very broad definition of news publishers and of what news is (including in the definition celebrity gossip). Despite some subsequent attempts by politicians to establish some exclusions, such as for trade publications and charities for instance, the attempt to distinguish press from other organisations remains problematic. In a media industry undergoing rapid change, distinctions between platforms are increasingly blurred, and stories from unlikely sources can have every bit as much impact as those from the traditional media whose power pro-regulation activists seek to curb.

The next few months will be crucial as IPSO and alternatives, such as the IMPRESS project, take up positions. IPSO will be keen to recruit publications that have not already joined and present itself as fait accompli, pointing out that nowhere in the Leveson recommendations is there specific mention of a Royal Charter.

But at the core of the entire argument is the fundamental fact that the government has been willing to use coercive, punitive measures specifically directed at the press.

Libel – a free speech victory?
On 1 January, the Defamation Act 2014 became statute. The new law, represented a victory for the Libel Reform Campaign led by Index on Censorship, English PEN and Sense About Science. The LRC had its roots in two things – English Pen and Index on Censorship’s report “Free Speech Is Not For Sale” and Sense About Science’s campaign “Keep Libel Laws Out Of Science”.

That campaign identified key problems with England’s libel law, which was simply not fit for the internet age. Among the issues were the ease with which foreign claimants could bring cases in London courts, and the lack of a coherent statute of limitation on web publication.

The new act, while still far from perfect, is, at least on paper, an improvement on what has gone before. It should in theory provide greater protection for writers.

Among the changes are the introduction of a strong public interest defence, a one-year statute of limitation on online articles (where previously each new “download” counted as a new publication), and a “serious harm” test for corporations wishing to sue for defamation.

One major point of concern is the refusal of Northern Ireland’s government to update its statute books in line with that of England and Wales. Libel lawyer Paul Tweed, who practices in Belfast, Dublin and London, has pointed out that wealthy litigants hoping for a more claimant-friendly regime may now take cases to Belfast rather than London. It is imperative that pressure continues to be put on the political parties in Northern Ireland to introduce the new legislation.

Surveillance and protection of sources
There is little doubt about what was the biggest global story in 2013. The revelations about global surveillance carried out by the US’s National Security Agency, with the help of Britain’s GCHQ, dominated much of the global conversation. But while the US has made some noises about reviewing its surveillance procedures (though it has shown no intention of halting its pursuit of whistleblower Edward Snowden), the UK government managed a very special combination of burying its head in the sand and shooting the messenger.

The Prime Minister warned the Guardian that it should stop publishing revelations or face legal action. Guardian editor Alan Rusbridger was summoned before parliament and accused of deliberately endangering British security.

Security officials even visited the Guardian and demanded that hard drives containing leaked material be destroyed in front of them, in spite of the fact they were aware the data was also held elsewhere.

David Miranda, the partner of the Rio-based journalist Glenn Greenwald, was stopped at Heathrow airport under terror legislation. This was clearly done in order to confiscate source material.

That action was challenged in the courts by Miranda, with Index on Censorship entering evidence in support of the case. The legal challenge to the detention of Mr Miranda has been dismissed by the High Court, though there is the possibility of an appeal.

The case raises serious questions about protection of journalists’ materials and sources. There was also grave concern that terror legislation was used against a person carrying out journalistic activity.

Meanwhile, the government has proposed, as part of the deregulation bill, a new system which would make it easier for authorities to force journalists to hand over materials and information about sources. The Deregulation Bill could, if passed unamended, strip away safeguards for journalists faced with demands for their materials from police, removing the requirement for judicial scrutiny of such demands.

Conclusion
2014 will be a crucial year, not just for newspapers, but for free speech for everyone in the UK. For as the wall between publisher and consumer is rapidly being dismantled, it will become harder and harder to compartmentalise press freedom and general principles of free speech.
While the reform of our libel laws will, we hope, be of great benefit to to free expression in the UK and beyond, there are still several areas where this government can act to safeguard the free press and free speech more broadly in the coming year. Chief among these is that we must allow press self-regulation to proceed without coercion. No one should be forced to sign up to the press Royal Charter, and no one should be subjected to exemplary damages. In short, self-regulation should be just that.

Moreover, the government should state its commitment to protection of journalistic sources, a crucial cornerstone of the fourth estate which has come under severe threat as a result of the Miranda case.

Finally, the government should ensure that Belfast does not become a haven for libel tourism, by doing everything it can to support the extension of the new Defamation Act to Northern Ireland.