- See eg the headline of the Sunday Times' recent Leader on press regulation: 'Free Speech, Warts and All', 6 October 2013.
- That is, if they were to join a new Regulator; for membership is incentivised (see n 5 below) but not compulsory.
- Lord Justice Leveson, An Inquiry into the Culture, Practices and Ethics of the Press: Report (HC 780, 2012).
- As one commentator summarises Leveson's fndings: 'What the Leveson Inquiry uncovered was abundant evidence of amoral, corrosive and in some cases corrupt practices in some of our papers' newsrooms in pursuit of stories with no conceivable public interest and which, in his own words, “wreaked havoc with the lives of innocent people”' (S Barnett, 'Leveson Past, Present and Future: The Politics of Press Regulation' (2013) 84(3) Political Quarterly 353, 354). Leveson also found serious problems with the accuracy of reporting: see text to n 42 below.
- Final Draft Royal Charter on Regulation of the Press, 11 October 2013, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/249783/Final_Draft_Royal_Charter_11_Oct_2013.pdf (hereinafter ‘Charter’). See Lara Fielden's paper in this volume for detailed comparative discussion of the key provisions of the Charter and the press's rival version, which was rejected. The Charter is underpinned by provisions in ss 34–42 and Sched 15 of the Courts and Crime Act 2013, which provide for the award of aggravated and exemplary damages in certain cases against publishers who have not joined a recognised Regulator and for cost-shifting against them.
- These include the PCC and BBC codes—see text to n 66 below.
- The Sun's front page on 18 May 2013, urging MPs to vote against the new Leveson-style system of press regulation, was headlined ‘D-Day for Press Freedom’ and carried a large picture of Winston Churchill.
- A-G v Guardian Newspapers [1987] 1 WLR 1248, 1287.
- See eg K Greenwalt, ‘Free Speech Justifcations’ (1989) 89 Columbia Law Review 119; F Schauer, Free Speech: A Philosophical Enquiry (Cambridge University Press, 1982).
- An episode considered in the Leveson Report (n 3) Part F, chapter 5, section 8 (vol 2).
- Leveson Report (n 3) vol 2, 585. Nor was any action taken by the PCC, although thousands of complaints about the photos were received from the public.
- This was so, particularly given the fact that anyone who really wanted to see them could view them easily enough online.
- It is a notable feature of many of the complained-of episodes—including for example the obsessive coverage of the private lives of Hugh Grant and Steve Coogan—that newspapers could produce not even an ex post facto ‘public interest’ justifcation beyond the mere celebrity of the people concerned. The only way to defend such speech under the rubric of the classical justifcations is to argue that judges are incapable of judging the boundary between worthless and valuable speech; an argument that has considerable purchase in the US (see eg Neil M Richards, ‘Intellectual Privacy’ (2008) 87 Texas Law Review 367, 389) but much less so in the European and Commonwealth democracies, including the UK.
- See eg Ronald Dworkin's basic postulate of the state's duty to treat its citizens with equal concern and respect, Taking Rights Seriously (Harvard University Press, 1978), and T Scanlon's infuential approach set out in ‘A Theory of Freedom of Expression’ (1972) 1 Philosophy & Public Affairs 216.
- C Emerson, 'Towards a General Theory of the First Amendment' (1963) 72 Yale Law Journal 877, 879–80; M Redish, Freedom of Expression (Michie Co, 1984) 20–30; Greenwalt (n 9) 143–5.
- The same does not of course apply to much online speech by individual bloggers and on social media. My concern in this paper is with the mass media. The new regulatory scheme will not apply to the vast majority of bloggers and small publishers: see Barnett (n 4) 356.
- Now in its second edition (Oxford University Press, 2005): see 419 ff.
- Media Freedom under the Human Rights Act (Oxford University Press, 2006) ch 1.
- The prime example is the US: see Barendt (n 17) 419.
- A notorious example is the Supreme Court's decision in Florida Star v BJF, 491 US 524 (1989), in which the Court held that a newspaper's revelation of a rape victim's name and address, resulting in her further terrorisation by her assailant, was protected against a civil action by the First Amendment; see also Cox Broadcasting Company v Cohn, 420 US 469 (1975) in relation to a TV broadcast giving details of a gang rape and the name of the 17-year-old victim, in violation of state law. For an analysis of how the First Amendment also effectively privileges media freedom to report prejudicially criminal trials over the individual's right to a fair trial, see G Phillipson, 'Trial by Media: The Betrayal of the First Amendment's Purpose' (2008) 71(4) Law and Contemporary Problems 15.
- Barendt (n 17) 420.
- 22 That right is encapsulated in Art 6(1) ECHR, although it is not there expressed to apply to the media more than to ordinary speakers.
- Via s 32 Data Protection Act 1998.
- Essentially there are greater procedural safeguards in the Police and Criminal Evidence Act 1984, Part II concerning obtaining a warrant to search for and seize journalistic material, as defned in s 13, and it may only be produced if it is in the public interest to do so.
- See above, pp 172–88.
- See Barendt (n 17) 423.
- Ibid, 421.
- Leveson Report (n 3) 1111–13.
- Barendt (n 17) 424. I take Jan Oster's theory of media freedom to be broadly in harmony with the third and fourth models, while including some actors outside the traditional media: 'Theory and Doctrine of “Media Freedom” as a Legal Concept' (2013) 5(1) Journal of Media Law 57.
- Moreover, we do not suggest that the arguments it puts forward are not accepted by Barendt: he asserts them Ibid at 450.
- Such as privacy, reputation, fairness of trials, etc.
- Red Lion Broadcasting v FCC, 395 US 367 (1969). As Barendt notes, the case is in fact out of line with the dominant strand of US jurisprudence in this feld: ‘The First Amendment and the Media’ in I Loveland (ed), Importing the First Amendment (Hart Publishing, 1998) 34.
- Leveson Report (n 3) vol 2, p 608.
- Ibid, vol 1, p 62.
- Ibid, vol 1, p 63.
- Ibid.
- The green pressure group Carbon Brief noted a series of articles in the Daily Mail which suggested that there was an average £200 ‘green tax’ on household energy bills, which accounted for 20% of total household energy costs. The claim was grossly inaccurate (the best accurate fgure was around £80 or 8%), but was used to justify a number of opinion pieces critical of the government's ‘green agenda’. Letters to the Mail pointing out the inaccuracy produced no response. Carbon Brief therefore complained to the PCC and three months later a correction was printed. Less than two weeks after this, the original claim was repeated in the Mail on Sunday. So Carbon Brief complained again; the Sunday Mail then repeated the claim while the complaint was pending. When the complaint went against the paper it printed a correction, and then two weeks later repeated the claim again.
- eg that the proposals amount to state licensing of the press; see the analysis of Des Freedman at http://inforrm.wordpress.com/2013/10/18/opinion-the-press-cant-decide-if-theyre-for-press-freedom-or-against-it-des-freedman.
- Newspaper reports have constantly claimed that the scheme would give politicians control of the press, a claim never justifed by citation of specifc provisions in the Charter, nor explained in the light of the fact that politicians will be specifcally barred from sitting on either the Regulator or the Recognition Panel, or in appointing to either, or in having any hand in drawing up the Standards Code.
- For a particularly egregious example, see eg Fraser Nelson, editor of the Spectator, writing in the Daily Mail: www.dailymail.co.uk/debate/article-2456926/Vengeful-MPs-Monty-Python-press-charter--lethal-threat-free-speech.html.
- See www.tuc.org.uk/social/tuc-21796-f0.cfm.
- Leveson Report (n 3) 11.
- Ibid, vol 1, p 63.
- Leveson does not have much to say about the value of press privileges in general, but he plainly accepts them, albeit that he proposes changes to both the data protection exemptions and the journalistic material privileges under the Police and Criminal Evidence Act. While I do not develop the point here, it is arguable that his recommended narrowing of these privileges is driven precisely by a perception that the privileges at present sweep more broadly than really be justifable, given how much of the press output does not deserve special protection.
- Law Commission of New Zealand, News Media Meets ‘New Media’ (March 2013), www.lawcom.govt.nz/sites/default/fles/publications/2013/03/nzlc_r128_new_media_web.pdf.
- Fielden, this volume, 187.
- Charter (n 5) Sched 3, para 11.
- Ibid, para 15.
- See 'The Human Right to Make a Killing' Daily Mail, 7 October 2013. As a press release for the Strasbourg Court subsequently pointed out, these included confating legal costs (which tend to be high) with damages (which tend to be very low) thus giving a hugely infated impression of the latter. For example, the Mail had alleged that applicant Douglas Vinter was 'awarded £34,5000'; in fact he got no damages, the sum awarded being entirely for legal costs and expenses. See www.humanrightseurope.org/2013/10/court-concern-at-seriously-misleading-uk-news-articles.
- Sched 3, para 16.
- See Charter, Sched 3, para 22.
- See eg the Speech by Paul Dacre at the Society of Editors Conference, 9 November 2008, http://image.guardian.co.uk/sys-fles/Media/documents/2008/11/07/DacreSpeech.pdf: 'if mass-circulation newspapers, which, of course, also devote considerable space to reporting and analysis of public affairs, don't have the freedom to write about scandal, I doubt whether they will retain their mass circulations, with the obvious worrying implications for the democratic process.'
- [2002] 3 WLR 542, 552.
- Campbell v MGN [2004] 2 WLR 1232, [162].
- Ibid, [77].
- Hutcheson v News Group Ltd [2011] EWCA Civ 808, [34].
- AAA v Associated Newspapers Ltd [2012] EWHC 2103 (QB); [2013] EMLR 2, [102].
- HL Paper 273, HC 1443 (2010–12), [82].
- Leveson Report (n 3) 454.
- This does not mean that proper evidence of the likely economic impact of regulation should be ignored when devising a regulatory scheme. However, as noted above, there is reason to believe that the Charter scheme could actually save the press money, by reducing the number of costly legal claims in defamation and privacy newspapers would have to fght in the High Court, these being resolved by way of correction and apology and/or arbitration.
- 2010–12, HL Paper 273, HC 1443.
- Leveson Report (n 3) vol 4, p 1585.
- Ibid, 1763. He added the important condition that 'The regulator, alongside the Code, must provide guidance on the interpretation of the public interest that justifes what otherwise would constitute a breach of the Code and must do so in the context of the different provisions of the Code so that the greater the public interest, the easier it will be to justify what might otherwise be considered as contrary to standards of propriety' (Ibid, 1764).
- See Sched 3, para 8. This paragraph adds 'the need for journalists to protect confdential sources of information' as an aspect of the public interest.
- Ibid, para 7.
- www.bbc.co.uk/editorialguidelines/page/guidelines-privacy-introduction.
- Preamble and Sched 3, paras 7 and 8.
- See eg Lord Hoffmann in Campbell (n 54) [55].
- 'The decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest': Von Hannover v Germany (2005) 40 EHRR 1, [76].
- Note also the way that it can be cited by Counsel, in reliance on s 12(4) Human Rights Act. Eg, 'the issue is whether proposed publication is lawful in the light of the public interest in freedom of expression': Spelman v Express Newspapers Ltd [2012] EWHC 355 (QB), [42].
- See nn 14 and 15 above.
- Classically put forward in JS Mill's On Liberty in M Cowling (ed), Selected Writings of John Stuart Mill (Cambridge University Press, 1968) 121; for discussion see Greenwalt (n 9) 130–41.
- Perhaps the most infuential theory: see A Meiklejohn, ‘The First Amendment is an Absolute’ [1961] Supreme Court Review 245 and Political Freedom (Oxford University Press, 1960) esp 115–24; Barendt, Freedom of Speech (n 17) 68.
- D Zimmerman, 'Requiem for a Heavyweight: A Farewell to Warren and Brandeis's Privacy Tort' (1983) 68 Cornell Law Review 291, 346.
- This can apply where the individual was previously unknown to the public.
- As Fielden notes in this volume at 188: 'the consensus among all the press councils I have looked at is that press regulation is concerned with ethical standards and with a speedy and cheap complaints mechanism that avoids costly litigation.'
- Speech by Paul Dacre at the Society of Editors Conference, 9 November 2008: http://image.guardian.co.uk/sys-fles/Media/documents/2008/11/07/DacreSpeech.pdf.
- Barnett (n 4) 353.
- Sir H Evans, annual Hugh Cudlipp Lecture at London College of Communications, 28 January 2013. See above, nn 38–40 and accompanying text.
- Above, n 40.
- See Fielden, this volume, 178.
- The phrase is Edwin Baker's: see ‘The Media that Citizens Need’ (1998) 147 University of Pennsylvania Law Review 317.
Journal of Media Law
Volume 5, 2013 - Issue 2