26 March: ‘The future of press regulation in Scotland’

Note: I will be speaking at this event on the post-Leveson debate and the regulation of content on the Internet. So if you want to know my views on the whole ‘news-related material’ and ‘OMG regulating tweets!’ controversy, this is where I’ll give them (and follow up here on this blog with a summary).

 

 

 

 

The Future of Press Regulation in Scotland

The EU MEDIADEM project is hosting a workshop on Tuesday 26 March 2013.

The expert committee chaired by Lord McCluskey has been exploring the implications of the Leveson Report for press regulation in Scotland. This workshop will examine the findings of that committee, as well as the various models of press regulation, such as a Royal Charter, that have been proposed post-Leveson. Among the expert speakers at the workshop will be members of the McCluskey committee, representatives from the press and academics working in the field.

The workshop will also consider a number of findings and potential ‘gaps’ in the Leveson Report that have attracted rather less media attention to date, notably – data protection, statutory recognition of the public interest in investigative journalism and the regulatory implications of media convergence.  Speakers will briefly introduce these topics before opening the floor to what we hope will prove to be a lively discussion.

The workshop will take place in the Ken Mason suite, Old College, South Bridge, Edinburgh EH8 9YL from 4pm – 6pm, followed by a wine reception.

The event is open to the public and we invite students, academics, journalists, civil servants, representatives from civil society organisations, the legal profession and members of the public to join us in engaging with these topical issues. Places are limited, so please confirm attendance with the administrator for the conference, Ms. Yolande Stolte. For further information call: 0131 650 2094.

Early thoughts on Leveson 1 of 4 – Regulation

This is one of a series of responses to the publication of the report of the Leveson Inquiry.  For an introduction, and links to other posts, see here.  Sorry, this is the longest one.  I hope it’s worth it.

Much commentary in the lead-up to the publication of the report was on what sort of regulatory system would be recommended.  The report outlines various aspects of a new regulatory system, which would be different from that of the PCC, as well as the proposals put forward by those associated with the PCC and with newspapers.  But actually, we are not sure what model is being recommended yet.  In my view a key feature of regulation must surely be the method of oversight, and it is this particular point where important details are left for a later stage.  The report proposes that Ofcom (and by saying so, ruling out the idea that it would be Government or a Minister) plays a role in recognising an independent regulatory body but how that relationship is to proceed is not yet clear.  The criteria are (to some extent) set out, and it would appear as if the designation would be on the lighter side, i.e. no obvious monitoring role for Ofcom, and the ‘backstop’ (as in place for broadcast advertising) would not be present at first, although it is recommended that Ofcom would be best placed to be involved in that process.

On the other hand, what we do see is many statements on the importance of independence.  The language of self-regulation is also used quite extensively.  I’m watching the summaries and reactions carefully as how this is received and reported is going to be so important.

As for compulsion/incentives there is very positive discussion of the ‘Irish model‘ (pp. 1708ff) and indeed similar proposals regarding the link between subscription to a regulatory body and the use of defences, with some further suggestions regarding arbitration.  I guess the difference in emphasis is that the ‘carrot’ in Irish law is the statutory Reynolds-like defence (responsible journalism), here it appears to be data protection/ICO powers and civil costs (presumably in defamation, privacy etc.). It’s fair to say that if we see methods of co-regulation as being set out on a spectrum, as academics like Chris Marsden have argued, that we don’t have a clear statement in the report on where on the spectrum Leveson would see press regulation sitting.  (This is not necessarily a criticism, as defining that will now fall to Parliament, perhaps).

If I were forming a view on the system (which I can’t without more details), I would also need to know whether decisions of the body would be subject to judicial review and bound to act in accordance with the Human Rights Act.  I should hope so, with penalties of up to £1,000,000 and also the ability to benefit from membership in other proceedings.  For the press, as well as complainants, who guards the guardians is very significant.  Some of this could flow from the method of designation (I won’t bore you with my views on this which I have set out in length), and the report does appear to assume that JR (not sure whether this means ‘old’ style or s 6 HRA) would be part of the scheme (p. 1766), but this could be made even clearer by building it into the statutory underpinning… (To be fair, there is also a very brief mention (p. 1601), in the context of the Hunt proposals rather than the inquiry’s own recommendation, that the industry would be ‘unlikely to contest’ justicability, but that’s far from enough).

I am interested in the question of multiple regulatory bodies.  There is a genuine difficulty in this issue – is a single body the sensible way to have an accountable, understandable system?  Or does (as the BBFC has recently argued, perhaps reflecting its own changing position and role) the existence of multiple regulatory bodies avoid the concentration of power over expression in too few hands?  In the report, it’s not really seen in that way, although it is argued (p. 1779) that more than one regulatory body (in the area under consideration) should be possible but is not advocated and “would (be regarded) as a failure on the part of the industry”.  (But see the recent changes to the Video Recordings Act, recognising two bodies instead of one, so as to separate the video games sector from video/DVD works, which was not really seen in that way; the BBFC or the whole cinema/video/games area isn’t discussed in the report).

There has been some doubt expressed by the Prime Minister on taking forward the recommendations in his speech today.  It’s interesting to see the approach here being about “crossing a rubicon”.  Frankly I think this is a selective reading of the current law, where on one hand we see serious restrictions of press freedom through the law of defamation, contempt of court, official secrets in place, and on the other hand press privileges such as favourable VAT treatment, exemptions from data protection legislation in place.  That rubicon has long been crossed and it is a bit rich for the Prime Minister to suggest that press freedom is currently safe in the hands of the House of Commons.  I am not signed up to the view that the response should be one that satisfies the victims (I’ve never believed that is the measure of law in any other area so I don’t intend to start believing it now), and think that it is unfair to criticise Cameron for failing to honour that sort of promise; however, as this paragraph should make clear, I think the conceptual basis of his approach is dead wrong and potentially misleading.

(For the record, on VAT – the recommendation, following the legal advice of HMRC etc, is that this is not really a viable method of control: p. 1660).

An eye-catching recommendation is a specific statutory provision on the freedom of the press (p. 1780)  This is fairly new to me but I probably missed it in the avalanche of evidence and documents.  I can see it being part of the mandate of a regulatory body for sure, but I’m not sure what it offers above and beyond the existing requirement of article 10 ECHR as referenced in the Human Rights Act.  And two other things: (a) constitutional provisions on press freedom are controversial in terms of the relationship between the rights of the press, rights to expression more generally, and the wide idea of communication rights, and (b) the EU Charter now couples freedom of expression and media pluralism; would that approach be followed here?  The draft here, modelled on that of the Media Regulation Round Table, is called an admirable proposal but not prescriptive as to text.  I think that caution is wise – as drafted, it seems too favourable to media interests and its relationship with Article 10 ECHR and Article 11 CFR is unclear.

Just a point on education and training, which was a big theme in the earliest Leveson hearings, but is not the subject of a specific recommendation after all.  It’s noted (p. 736) that training is increasingly university-based and the importance of training is emphasised.  Would the new press body have a role to play?  I don’t see anything on that but it may be helpful.  Perhaps this is a thumbs-up for existing education but I wonder whether further action will be needed under this heading…

Early thoughts on Leveson 2 of 4 – the Internet!

This is one of a series of responses to the publication of the report of the Leveson Inquiry.  For an introduction, and links to other posts, see here.

There was much discussion on whether Leveson would make recommendations regarding Internet regulation.  There’s a decent discussion of Web issues in the report, and brief mentions of the system for regulating video-on-demand (discussed a bit more below), but in terms of recommendations there is not much there.  Of course, the remit was the press, and indeed there will be some who express relief regarding the lack of recommendations in this regard.  The proposed regulatory system would be open to participation by websites (as I read it) and that is sensible.  (There is a discussion of a ‘de minimis’ approach to required/encouraged participation, which would be particularly important in this context).  However it will be interesting to see whether further work on taking forward that discussion (e.g. on intermediaries, on dissemination through social networking sites, etc) will now be appropriate, i.e. outside of the Leveson process.  In my view, one outcome of the process was a lot of evidence on how different service providers governed their services (and thus their users), as well as issues raised about the application and enforcement of existing law.  On balance it was probably right to stay away from specific recommendations, but it would be sad to see that effort go to waste (the problems will not go away).

On demarcation, it is recommended that services within the scope of the Broadcasting Code or the ATVOD system would not be within the scope of the proposed press body (p. 1791).  This is interesting, although since the Ofcom finding that the Sun’s video content did not constitute (for the purposes of VOD regulation) an on-demand audiovisual media service, and ATVOD’s subsequent withdrawal of actions against (broadly speaking) other newspaper websites, the potential for overlap is significantly reduced.  I raised an eyebrow at the idea on the same page that the criterion for regulation of on-demand services (that they are ‘TV-like’) applied by ATVOD and Ofcom (but following the language of the AVMS Directive) could help to define ‘press-like’ in the context of press regulation.  I still harbour doubts about the sustainability of the TV-like definition (not least because, when you put all the defined terms together, one goes around in circles), so I hope the press body, if it is created, has a strong pot of coffee for figuring it out.

By the way, at p. 166 (discussing on-demand services and the designation of ATVOD by Ofcom), the report argues that “protections similar to that applied to broadcast content are applied to that same or similar content when made available online.” In this case, I disagree.  Aside from the procedural differences in licensing (which don’t tell us about protections, really), or sanctions (which might), the content standards are radically different.  ATVOD applies a much smaller set of regulatory requirements (identification, incitement to hatred, protection of minors and some controls on commercial promotion) than Ofcom does.  Think for example of the EU-required higher level of protection of children or on advertising which applies to ‘linear’ content only, not to mention the many requirements of UK law (which apply to all broadcasters, not just the public service ones) on due impartiality, on fairness and privacy, and much, much more.

I think that the discussion on intermediaries (p. 178) will require further thought – it cites article 15 ECD as the regulatory framework, which doesn’t quite concur with how I read the Directive, but no conclusions are drawn in any event.  (There is a much better explanation of the issue, including the issues raised in Tamiz, at p. 1900)

Finally, there is a neat framing of the Internet as an ethical vacuum (page 736) – the report is careful in pointing out that this is not intended to impugn the ethical standards of individual bloggers etc, and that the point is to demonstrate that the Internet does not make a claim as to standards.  Nonetheless I think attributing an ethical concept to ‘the Internet’ does not get us very far; I think the class is too big to make sense. There may also be useful ethical models associated with online communication which might, I dare to say, be useful for the press!

Sorry, two other things.  There is what might be interpreted as praise for Google’s approach to privacy (p. 168).  I’d imagine this will be controversial in some eyes.  But not much is made of it.  And there is a quirky mention of, of all things, ICANN (not further developed) (p. 166)!

Early thoughts on Leveson 3 of 4 – data protection

This is one of a series of responses to the publication of the report of the Leveson Inquiry.  For an introduction, and links to other posts, see here.

The extent of the recommendations on amending the provisions for journalism in the Data Protection Act came as a surprise to me, and of course the Government will have to be aware of the context of EU law if it does implement these proposals.  It would change the nature of the journalistic exemption under the Directive as implemented in the UK through the Data Protection Act.  (This is an unusual formulation in the Directive – member states *shall* provide a derogation but only when it is *necessary*; implementation is therefore of interest to the EU; and not forgetting the interaction between data protection and (other?) fundamental rights.

Although this is a field of law that is complex, and the recommendations may seem on the legalistic side, I do believe that this has the potential to be quite far-reaching.  It’s not a surprise that it has come up in the House of Commons debate (although more heat than light so far).  Some of the objections may be fairly categorised as symbolic, that is to say, it is the idea of having an exemption (or special treatment, if you will) that is important rather than every aspect of compliance.  However I would anticipate particular tensions in respect of subject access requests (i.e. Mary Murphy contacts a newspaper asking for all the data it holds on her), and the proposed shift in the burden for those areas that are covered by an exemption might have an impact.

The recommendations on the structure of the ICO are also particularly detailed – there may be a need to consider the consequences of such changes for other areas under the DPA supervised by the ICO (which were well beyond Leveson’s remit or indeed interest).  There is, quite fairly, a reminder that some of the recommendations can be implemented soon and should not be delayed until longer-term structural changes are considered.  Nonetheless the role of the ICO is surely up for discussion now, and not just in respect of its relationship with the media.  Data protection watchers (of which I am not really one) will be interested in this process.  (Time for a focused review of the ICO in the context of these recommendations but with wider participation from IT lawyers?).

It’s less of a surprise, but still important, to see it recommended that the stronger sentencing powers for the criminal provision in the Data Protection Act (s 55) be (finally) brought into force.

Early thoughts on Leveson 4 of 4 – Devolution and Jurisdiction

This is one of a series of responses to the publication of the report of the Leveson Inquiry.  For an introduction, and links to other posts, see here.

Interest in the implications of the Leveson recommendations in Scotland in particular was highlighted by statements from the Scottish National Party this week reminding all and sundry that the Scottish Parliament might take a different approach, particularly if the response of the UK Government was too timid or too intrusive.  I (and I’m sure others) therefore made a beeline for the discussion of the report and devolution (p 49).  It is clear that there is an awareness that while some of the issues are currently within the exclusive competence of the UK government in respect of all territories, other issues are the subject either of specific devolution or (in the case of Scotland) not being reserved to the UK.  (Compare for example media pluralism with the law of privacy).  It’s noted that it would fall to the relevant administrations to implement the report, but that it should be possible for that to happen.  “I have not been made aware of any technical reason why my recommendations should not be able to be accommodated, with appropriate adjustment, in all parts of the UK, but I have not sought detailed advice on the matter.

Possible it may be, but I think that there are three issues to watch for here.

1. Policy divergence.  This is the issue hinted at by the Scottish statement of this week.  Let’s imagine that the UK government declines to implement a particular recommendation, but there is support for it in Scotland, and it’s in an area where there is legislative competence for Holyrood to take action.  Will it do so?  Would other administrations follow?

2. The role of Ofcom.  This is not an issue dealt with in the report, but is worth thinking about.  The vast majority of Ofcom’s work falls within clearly reserved / non-devolved areas.  Telecoms, television, etc.  Ofcom is conscious of issues in ‘the nations’ including in its committee structure, its work on Welsh, Gaelic and Irish, etc.  But if Ofcom were to be responsible for oversight of the press regulatory system, that would open up an interesting type of relationship between Ofcom and the administrations.  This could be ‘solved’ by ensuring no government or legislative role in the process – which some favour and the report seems open to – but would the legislative change be done through UK legislation (applying the Sewel convention for the consent of devolved legislatures to UK legislation in devolved fields) or through the separate legislatures conferring power on Ofcom?  Would Scotland want to beef up its oversight (policy, administration and finance) of Ofcom if Ofcom has oversight on a matter in which the Scottish Parliament has legislative competence?

3. Independence.  Because by the time all of this gets up and running, it might have happened.  The Scottish Government has already taken the approach of being gently critical of Ofcom issuing long-term licences in other fields given the upcoming referendum….

4. If regulation depends in part on being linked with legal remedies (i.e. relying on subscription to a regulatory body as a defence), many of those defences will relate to devolved areas – note in particular that the matters in the current Defamation Bill is not the subject of active consideration in the (separate) defamation law of Scotland.

5. Data protection is reserved, privacy is (generally speaking) devolved in respect of Scotland and (more tentatively) Northern Ireland.  Ponder the future of the Information Commissioner in the context of devolution, particularly if it is to become an Information Commission.  (Already, the ICO does not deal with FOI for Scotland).

Of course, the bit of Scottish interest that will get more of the headlines will be the role of the First Minister in relation to Sky (see pp. 1407ff, pp. 1418ff), on which I’m not sure I have anything interesting to say right now.