What about the bloggers?

English PEN raises concerns about wider impact of Leveson proposals

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Incentives encouraging press to join regulator focus on the big media players and risk excluding the online newcomers from the benefits, leading to some free speech being cheaper than others

English PEN believes in the right to freedom of expression and supports the freedom of the press. We therefore welcome Lord Justice Leveson’s recognition of the fundamental role played by the press in society.

We have serious concerns however about voluntary, independent self-regulation being in effect compulsory, the proposal for statutory control of standards which seeks to control content, and the introduction of incentives to join the regulator which would result in a two-tier system of justice with an adverse impact on freedom of speech, not just in the UK but elsewhere in the world.

Cheaper access to justice for some

The primary purpose of legislation in Lord Leveson’s proposals is to enable formal recognition of the independent regulator, so that its subscribers get certain benefits in civil court proceedings.

Whilst we are pleased that Lord Justice Leveson has supported English PEN and Index on Censorship’s call[1] for mechanisms that offer swift, low cost dispute resolution, we believe that this should be available to all and cannot be linked to incentives without infringing fundamental rights.

Those who choose to join the regulator will benefit from cheaper access to justice than those who do not, meaning that some people’s right to free speech costs more than others.

Lord Justice Leveson has said that it should be open to any publisher to subscribe to the press regulator[2]. This includes individuals who publish material online, such as bloggers. Many such individuals or small publishers will choose not to join – either on principle, or because of cost or other practical considerations. Under these proposals, publishers may act within the law, be taken to court by a complainant who loses the case, and find themselves being penalised by not being able to recover their legal costs because they do not subscribe to the regulator. That would be inequitable and a denial of access to justice as well as infringe the right to free speech.

Legislation not necessary

Furthermore, legislation is not necessary to achieve the intended result of recognising a regulatory body for the purposes of the courts. A court can already consider whether a litigant offered to resolve the case through alternative means of dispute resolution and, if the other litigant(s) refused this, take this in to account in consideration of costs. 

Given the way in which news is now disseminated, with an increasing number of bloggers and citizen journalists providing news services, it is now more important than ever to consider the position of individuals and small publishers in any legal or regulatory regimes. We are concerned that in Lord Justice Leveson’s consideration of the future of press regulation he has largely focused on larger publishers such as national and regional press and periodical magazines, and that the individual right of free speech could be at risk.

This is important not only for those in the UK, but also for the rest of the world, with other countries frequently looking to the UK when considering their own democratic and compliance structures.

Threat of compulsory regulation

We agree in principle that it is possible to draft legislation recognising a formal press council or regulator without infringing the right to freedom of expression and freedom of the press. In order for this to be the case, membership of such a council or regulator would have to be entirely voluntary. Anything else would amount to licensing of the press.

Under Leveson’s primary proposals, membership of an independent self-regulatory body would not be compulsory[3]. But he also states that if all significant news publishers do not join the new independent self-regulatory body, or if the industry fails to set up a body which is satisfactory, the government should consider imposing statutory regulation[4].

The threat of statutory regulation for a publisher who does not join an independent self- regulatory body means that membership of such a body is de facto compulsory. Taken together with Lord Justice Leveson’s recommendation that the statute formally recognising the new regulatory body should specify a level of standards to which its subscribers adhere, this is an additional concern.

First sign of content regulation

The recommendation includes a requirement that those standards address issues of conduct, privacy and accuracy[5]. This is the first sign of content regulation. If participation in the regulatory body is truly voluntary, this is not problematic. The participants would voluntarily be holding themselves to particular standards which may include ethical considerations. But if participation is de facto compulsory there is a risk that publishers may be held to a higher standard than the law requires.

Civil law: damages

Lord Justice Leveson recommends that punitive damages (or exemplary damages as they are currently known) be available in media torts, including actions for libel and privacy.  In considering whether an award for exemplary damages should be made, courts should take in to account whether a defendant subscribes to a regulatory body, recognised by statute, or has good internal governance in relation to sourcing of stories[6].  Exemplary damages are those damages awarded at a level which is higher than that awarded for distress or actual financial loss, and aimed at punishing the wrongdoer. 

This proposal gives rise to the same concern as that noted above:  that free speech will be cheaper for those who subscribe to a regulator, and many individuals or small publishers may choose not to subscribe.  We are in this instance re-assured that Lord Justice Leveson recognises that good internal governance processes for anyone, whether they subscribe to a regulator or not, should offer protection against having to pay exemplary damages for something that may have arisen as a result of a simple misunderstanding or a mistake.  It is imperative however that this acknowledgement is borne out in practice, and that subscription to a regulator does not become the only means of avoiding exemplary damages.

Awarded appropriately, we believe that exemplary damages have the right potential to strike the balance between the competing rights of free speech and privacy.  Damages are awarded only against those who have acted unlawfully, and exemplary damages may be an appropriate way to address those who have wantonly and repeatedly done so.  

Civil law: costs

We have set out above our objections to excluding those who choose not to subscribe to a regulatory body from more affordable access to justice.  We also have significant concerns about Lord Justice Leveson’s proposals that unless an approved form of dispute resolution, through an independent regulator, is available free of charge to complainants, the Government should introduce qualified one way costs shifting in media torts[7].  Qualified one way costs shifting (QOCS) is a term used to describe a process whereby a defendant may have to pay a claimant’s legal costs on losing a court claim, but the claimant will not have to pay the defendant’s costs (unless the claimant is conspicuously wealthy).  

Our concerns about QOCS arise because the nature, and resources, of parties in defamation proceedings can very wildly.  The claimant might be an individual of modest means and the defendant a large well established newspaper group, but it is also common for a claimant to be a wealthy, well resourced individual or company and the defendant an individual blogger or author.  QOCS would give protection against paying costs to an individual claimant, but leaves an individual defendant exposed to having to pay enormous legal costs.      

We have made a series of proposals regarding costs in defamation cases which take in to account the potential size and resources of both claimants and defendants.  These include a form of costs protection to protect a party who is not conspicuously wealthy from having to pay the other side’s cost in the event of losing, and the introduction of a costs cap.  Our proposals are set out in full in the Alternative Libel Project[8]

 Criminal law: data protection

Lord Justice Leveson recommends that section 32 of the Data Protection Act 1998 be amended.  This currently exempts people from certain data protection principles (e.g. that personal data should be processed in accordance with the rights of individuals under the Data Protection Act) and the requirement to comply with certain requests from the subject of the data (the right of subject access, to prevent processing likely to cause damage or distress or from the right to rectification of inaccurate material) if they are holding information with a view to publishing it for journalistic, literary or artistic purposes. 

The proposed amendments would considerably restrict the scope of the exemptions[9] that section 32 provides as well as requiring that the processing of data be ‘necessary for publication’ as opposed to ‘with a view to publication’.  This is a high hurdle to clear: we are concerned that the higher standard would be extremely difficult to prove.  The Report says ‘the policy intention would be to tighten the nexus, or causal link, which the legislation requires between the acquisition and handling of the personal information and the ultimate publication but certainly not to the (obviously unworkable) extent that the exemption would apply only to material actually published’[10].  Despite this statement we fear that the proposed change would have exactly this effect. 

Once again we caution here about assuming that the provision being discussed affects just journalists working for large newspaper publishers; it could apply to anyone who wants to publish something journalistic, literary or artistic.  Authors gathering information for biographies or history books, enthusiasts researching articles for a club newsletter, bloggers, newspaper and broadcast journalists alike will all be caught by this provision. 

The current drafting, which allows an exemption ‘with a view to publication’ may be drafted too widely as it allows speculative gathering of material; but to say data must be ‘necessary for publication’ would be to allow the pendulum to swing too far in the other direction.  It is very difficult for a journalist or author to anticipate whether the information gathered in carrying out research with the intention of writing an article or a book (or even to carrying out research whilst considering the possibility of writing an article or book) is ‘necessary’ for publication.  It is essential therefore that the language used is both appropriate and entirely clear.

Lord Justice Leveson also recommends[11] that the provisions of the Criminal Justice and Immigration Act 2008 which relate to the Data Protection Act be brought in to force.  These provisions introduce both a public interest journalism defence to, and potential custodial sentence for breach of, section 55 of the Data Protection Act.

PEN is opposed to the jailing journalists who are merely fulfilling the duties of their job.  We campaign around the world for the release of writers who have been imprisoned for carrying out their work.  The possibility of custodial sentences for breach of the Data Protection Act is therefore of serious concern. 

Journalists’ work, by its very nature, involves gathering and holding information which comes under the scope of the Data Protection Act.  There is a risk in performing routine tasks that journalists will breach s.55 of the Data Protection Act.  They may publish personal information, without permission, because they believe it is in the public interest to do so.  The current public interest test is, however, an objective one, and if a court disagrees with the journalists’ assessment that it was in the public interest to publish the relevant material, the journalist would be found to have committed an offence. 

The proposed public interest journalism defence does offer an approved defence for journalists as the enhanced test is a subjective one.  This takes the journalist’s actual belief into account, rather than carrying out an assessment of whether publication was in the public interest from the point of view of the ‘man in the street’.  Yet the introduction of this enhanced defence does not allay all of our fears.  With regards to the media we are concerned that relatively junior individuals could receive custodial sentences when the breach concerned was directed by more senior colleagues.  One suspects that those individual journalists who were found in breach of data protection laws would be relatively junior, and not the editors or owners of the newspapers, begging the question of whether a custodial sentence, which can only punish individuals, can be effective to prevent crime which has been, in effect, perpetrated by a corporation.    

Perhaps of more concern, however, is that the enhanced defence only applies to journalists, and not other writers who process and publish data.  Even if the definition of journalism is taken to be very wide and includes bloggers and other small, internet-based publishers, the defence puts other individuals at risk of a custodial sentence if they publish data in the genuine belief that it is in the public interest to do so.  Authors of biographies, for example, could find themselves at risk of being imprisoned for a breach of the data protection act if the court disagrees with their interpretation of what is in the public interest.  Whilst we fully support the need to offer protection to journalists for carrying out their jobs, we urge that other writers are not forgotten. 

Criminal law: procedure

Lord Justice Leveson recommends[12] that the home office should consider, and if necessary consult, over potential changes to the Police and Criminal Evidence Act (PACE), the statute which governs how the police must act when the investigate, issue warrants, make arrests etc. 

One of the recommendations is that a definition of ‘for the purposes of journalism’ be defined.  Once again, we must caution against this in the age of the internet.  Even the broadest definition cannot anticipate how journalism will continue to change in a world where information can instantly be accessed by individuals on a global scale.

The main recommendation of concern, however, is that s.11(3) of PACE be amended.  The effect of this section is to allow police to seize material which journalists hold in confidence.  The obligation of confidence can arise by virtue of an express or implied undertaking to hold the material in this way, or through other restrictions or obligations (the act does not specify what these restrictions or obligations are); it must also have been held in this way since it was acquired or created for the purposes of journalism.  Lord Justice Leveson recommends that this be amended so that only information that has been obtained and held subject to an ‘enforceable and lawful’ undertaking, restriction or obligation can be considered to be held in confidence.  This would prevent material that has been stolen, for example, from being held in confidence and open up the possibility that the police could seize such material from journalists.  In addition, the introduction of the word ‘enforceable’ would introduce confusion to the provision, as it is a vague and unclear requirement. 

This change would pose a threat to investigative journalism, by enabling police to seize material which is part of a legitimate investigation.  Lord Justice Leveson’s proposal does not include a public interest defence, and we believe that it therefore ignores the fact that in some instances it is in the clear public interest to act unlawfully in order to expose the failings or corruption of those in power.  The stolen CD that the Telegraph used to expose the parliamentary expenses scandal is a prime example of this.  In our view, this proposal must therefore be reconsidered very carefully. 

The press and the police

We are concerned that in the wake of the Leveson report there was an arrest of a police officer for misconduct in public office, apparently for leaking information to the press.  We hope that this is not an indication of the police’s reaction to the Leveson report which expresses concern about the inappropriate leaking of information to the press; the report also says that there may be exceptional circumstances in which it is justified to place confidential information into the public domain[13], and the police must take this into consideration as well.

One of the recommendations Lord Justice Leveson does make in respect of the police is that all contact with the press by senior officers should be recorded[14].  There will always be circumstances when police whistleblowers may wish to give information to the press, in the public interest, because they do not believe the internal processes for reporting their concerns would ensure they are properly addressed.   We believe that there should therefore be a public interest exception to the requirement for police officers to log all contact with the press.  This would be consistent with Lord Justice Leveson’s recognition of the exceptional circumstances in which it is justified to place confidential information in the public domain.  

Protection for journalists

Lord Justice Leveson recommends[15] the introduction of a whistleblowing hotline and the introduction of conscience clauses in journalists’ contracts.  We welcome these proposals, and hope they will help to provide protection for journalists who feel they are being asked to act unlawfully without there being a public interest argument for doing so. 

First published: 6 December 2012

Updated: 25 February 2013

[1] The Alternative Libel Project, a collaboration between English PEN and Index on Censorship http://www.englishpen.org/wp-content/uploads/2012/03/Alternative_Libel_Project_FinalMarch2012.pdf

[2] Volume 4, Part K, Chapter 7.4.11-7.4.13

[3] Volume 4, Part K, Chapter 7.4.11-7.4.13

[4] Volume 4, Part K, Chapter 7.3.31 – 7.3.35

[5] Volume 4, Part K Chapter 7.4.23

[6] Recommendation 72, Summary of Recommendations

[7] Recommendation 48, Summary of recommendations

[8] The Alternative Libel Project, a collaboration between English PEN and Index on Censorship http://www.englishpen.org/wp-content/uploads/2012/03/Alternative_Libel_Project_FinalMarch2012.pdf

[9] Recommendation 49, Summary of recommendations: s.32 DPA should not allow exemption from

‘(a) the requirement of the first data protection principle to process personal data fairly (except in relation to the provision of information to the data subject under paragraph 2(1)(a) of Part II Schedule 1 to the 1998 Act) and in accordance with statute law;(b) the second data protection principle (personal data to be obtained only for specific purposes and not processed incompatibly with those purposes);(c) the fourth data protection principle (personal data to be accurate and kept up to date);(d) the sixth data protection principle (personal data to be processed in accordance with the rights of individuals under the Act);(e) the eighth data protection principle (restrictions on exporting personal data); and(f) the right of subject access.’

[10] Volume 3, Part H, Chapter 5.2.23

[11] Recommendation 67, Summary of recommendations

[12] Recommendation 68, Summary of recommendations

[13] Volume 2, Part G, Chapter 4.8.8

[14] Recommendation 76, Summary of recommendations

[15] Recommendations 46 & 47, Summary of recommendations

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