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Article 10: Freedom of expression
Article 10 of the European Convention on Human Rights protects freedom of opinion and its expression. This is clearly a topical issue at the present time with the Leveson Inquiry considering the matter. Below is a set of seven principles discussed by JUSTICE’s Council1 in January for how JUSTICE might approach the issue. This is still a work in progress so keep an eye out for developments. You will see that the propositions are deliberately broad to cover a range of positions held by Council members.
Whatever the detailed structure of media regulation, it should be guided by the principles set out below. These are essentially common in substance for all media – digital or printed. There should, however, be differences in how they are implemented to reflect the difference between, say, an individual blogger and a national newspaper:
(1) The free expression of ideas and information is only to be restricted for the most pressing of reasons and that restrictions must be only those that are necessary for those reasons.
(2) Privacy should be protected by legislation but exemption expressly made to recognise responsible journalism.
Parliament should review laws on privacy and expression, both civil and criminal, as a coherent whole to protect free expression, on the one hand, and to ensure that the totality of legislation provides appropriate protection for a person’s privacy, on the other. A start on protecting free expression has been made in the Government’s draft libel bill where the intention is to reduce the chilling effect of libel in cases such as that involving Simon Singh. But this needs to extend to considering a public interest test justifying public disclosure in a range of legislation that otherwise requires privacy. It may not be too much to have a specific public interest defence to specific crimes (eg, in relation to offences under the Bribery Act where a journalist pays a source) but there would be merit in Parliament making it clear to the Department of Public Prosecution (DPP) and Crown Prosecution Service (CPS) that the interests of freedom of expression are relevant in any decision to prosecute any offence. This might, in particular, be done by adding a reference to investigative journalism in the list of ‘Some common public interest factors tending against prosecution’ in the Code for Crown Prosecutors.2 Consideration should also be given to whether new offences protecting privacy are required. The second Calcutt report suggested that three new crimes be committed including trespass for the purpose of obtaining personal information with a view to publication.3
(3) There should be a code along the lines of the existing Editors’ Code of Practice.
There would seem no reason why the substance of the code (which would essentially be to strive for honesty and accuracy) could not apply to all media, whether published digitally or otherwise. A body independent of Government should be responsible for publishing the code after wide public consultation, including with the appropriate Parliamentary committees (to include the Media, Culture and Sport Committee as well as the Joint Human Rights Committee). No doubt, the code would not be that dissimilar to the current version. Some would argue that this could be left to the Editors Committee of the Press Council, as presently constituted, to undertake. Others might suggest alternatives, eg, that Lord Justice Leveson might lead this process or that the Editors Committee be strengthened by a chair who does not come from the media industry. In any event, it would be desirable to have an open debate on the wording of the code since alternative versions of this kind of document suggest that some improvements might be made. For example, the New York Times guidelines on integrity include a requirement that ‘readers should be able to assume that every word between quotation marks is what the speaker or writer said … ‘“approximate” quotations can undermine readers’ trust …’ It may be that certain intrusive journalistic investigation would require the specific approval of an editor. There might be some consideration of the drafting of ‘public interest’ provisions.
(4) The code of guidance should:
(i) govern the standards of journalism;
(ii) place responsibility on a publisher, digital or otherwise, to have a means of dealing with complaints of breach which is proportionate, quick, accessible, independent and effective;
(iii) specify that the primary responsibility for dealing with complaints should lie with the publisher (ie, there should be internal mechanisms);
(iv) require that newspapers (appropriately defined) be expected to have a more structured scheme which might or might not be common to them all or could be individually tailored provided it met the specified criteria; and
(v) specify some form of out of court enforcement mechanism(s) (see below).
(5) The new code needs to be more enforceable than the current Editors’ Code.
There are a variety of ways in which this could be done. As discussed above, one way would be to build on the requirement in s12 Human Rights Act that the courts take 'any privacy code’ into account. Thus, statute might provide that a publisher – digital or print – would have some form of total or limited exemption from damages or costs that might otherwise be awarded by the courts where it had:
(i) complied with the code; and
(ii) properly dealt with any complaint.
This was floated as a proposal by the 1990 Deedes Committee in relation to defamation: ‘informal systems for the resolution of complaints … should be encouraged. One method … would be for the courts to consider the availability of such remedies in determining the scale of damages’.4
(6) There should be a mechanism by which complainants are offered informal conciliation before any other remedy.
There are two elements to this. First, publishers should carry prime responsibility to deal properly with complaints immediately and this should be encouraged by the level of awards of damages and costs. Second, there is advantage in the intermediate brokerage of some body such as the Press Complaints Commission (PCC) in which the media industry feels that it has a stake. However, any tribunal or ombudsman could and should offer a fast conciliation opportunity to any complainant before taking it further.
(7) Cases should be kept out of the courts where possible by a tribunal or ombudsman which encourages out of court settlement.
This is to encourage speed and reduce cost. Funding is a material practical consideration that may affect structure of any enforcement institution. One of the great advantages of some form of self-regulation is that it does not involve state expenditure. However, there is clearly a tainted perception of the PCC in the light of its evident recent failures. David Cameron has accused it of being ‘ineffective and lacking in rigour’ and Ed Miliband ‘a toothless poodle’. There is much support for the view that it has had a genuine value as an informal conciliator but is to be criticised as having no active role in monitoring compliance with the code of guidance, no effective sanctions (which lead to it being flouted in the way that happened over phone hacking allegations) and no procedure that allows complainants to feel that they have had a fair hearing.
Conversely, the PCC is self-funded by the press industry which currently pays around £2m. There is something in the argument that the economics of the print industry are such that significantly greater sums are unlikely to be easily forthcoming. The Express group has already been excluded from the PCC because of its failure to meet its share of the costs. Furthermore, it is unlikely that any significant Government funding will be available. Thus, there are unlikely to be much greater funds available than at present. An enforcement institution is required but it could take various forms. In particular, a choice can be made between some form of ombudsman or tribunal model. The difference between the two would largely be in formality and the role played by lawyers. On this, members of Council have different views. However, common elements agreed by all include:
(i) the objective of settling cases out of court;
(ii) the advantage of encouraging such settlement by such measures as damages and costs advantages for those taking advantage of them (some argue that such advantages would be sufficient to encourage participation and thereby avoid compulsion which, in turn, would mean that the mechanism could continue to be non-statutory);
(iii) the value of conciliation;
(iv) the need for expedition;
(v) the desirability of a proactive role in monitoring adherence to the code; and
(vi) compensation awards should be compensatory rather than punitive.
Council has different views on whether lawyers should be encouraged to participate in such a procedure (which might tend towards a form of tribunal) or whether there is a positive advantage in their exclusion (which might tend towards a form of ombudsman). If cost is accepted as a practical restriction on what might be done, that would be a factor that would perhaps encourage an ombudsman model where procedures might be informal.
1JUSTICE’s work is overseen by its members via a Council chaired by Helena Kennedy (Baroness Kennedy of the Shaws QC). The Council meets twice a year and includes prominent members of the legal profession and academic world who are elected at JUSTICE's Annual General Meeting, which all members are eligible to attend.
2Code for Crown Prosecutors, para 4.17.