JANUARY 2013
Hamlins LLP
23
benefit, either in terms of higher circulation or broadening sector ownership. We currently represent five phone-hacking victims and are seeing the extents to which the press would go to obtain private information. The Inquiry also exposed the extent of political lobbying and influence by the media over key sector decisions made by politicians, again for the benefit of powerful media conglomerates.
The findings and severe criticisms in Leveson’s Report, both of certain individual witnesses but more significantly the operations of the media, reflect both the evidence and the need for a fundamental re-shaping of the way in which the sector is regulated.
do you think that stricter self-regulation will be effective?
This will depend on whether politicians will accept Lord Leveson's key recommendations to establish a regulator which is truly independent of those it regulates. Every couple of decades, opportunities have arisen to change the way in which the press is regulated. Each time, a new body has been established which falls down because it is funded by the industry, has inadequate powers against papers which infringe its Code and has senior figures from within the press in positions of influence.
There have been statements of intent by a range of newspapers to implement the non-statutory recommendations. Publication has also seen a dash by the press and government to set up a new regulatory body without statutory underpinning. There is a political battle ahead, with alternative plans being drawn up for legislation. The government favour a two-stage process where the press is given another chance to establish the new body without what Leveson describes as “statutory underpinning”. Others want the recommended role for a body such as OFCOM to audit the performance of the regulator itself.
The claim that Leveson’s recommended structure would result in “state control” of the media and a restriction of freedom of the press to express a wide range of views is scaremongering. Lord Leveson pointedly speaks of great journalism and great campaigns by the press and that it is in the public interest for it to inform, educate and entertain. The press, Leveson says, must be irreverent, unruly and opinionated.
Leveson does not recommend an OFCOM-style body, with licensing, which regulates the broadcast media. The role of OFCOM would be strictly limited to overseeing the establishment of the new regulator and
ensuring it remained true to its own articles of association.
The most important point is that the press now has the opportunity to re-gain the trust of the public.
What would you like to have seen in the report?
The Report does not fully address the issue of recovery of costs incurred by members of the public who make complaints, where they need the support of specialist lawyers particularly in the context of arbitration. If complainants cannot recover such costs including representation at any hearings this will deter those who cannot afford to carry the legal fees.
The regulator proposed by Leveson will have the power to order publication of an apology and to impose fines on newspapers for serious breaches of the new Code but not to award compensation to those who have suffered from a newspaper’s excesses.
The single most telling omission, however, is in respect of on-line content. There is barely any reference to the internet and the supply of information – true or otherwise – often by “citizen journalists”, albeit that Leveson acknowledges its impact on the media generally. Given the cross-jurisdictional nature of the internet, from those posting to the location of servers, aspects concerning regulation of content on-line would require international cooperation, should this indeed be possible. I would, however, have hoped to have seen more discussion as to the problems presented by such content.
What is the overall mood amongst your media and press clients in response to the Report?
Some of our publisher clients include Hello! and Psychologies magazines and the internet publisher Popbitch and we worked with them to respond at various stages during the Inquiry to suggest forms of regulatory body including the Hunt/Black proposal put forward by the press. Those members of the print media who apply the principles of responsible journalism when preparing content, including in particular the good practice in seeking to understand and convey both sides to any story, have nothing to fear from the proposals in the Report.
If fully implemented, nothing proposed would result in any form of inhibition by the state of the right of the print media freely to express a diverse range of opinions and stand-points. The area of concern for publisher clients is the potential additional financial burden which would result if a new body, with increased
responsibilities and functions such as arbitration, is funded solely by the industry.
How will this affect your future work?
The media sector has been continually evolving since I started working in the area in 1990. The advent of the web heralded an incredible shift in information, advertising revenue and fragmentation of the media industry. At the same time, media ownership has largely concentrated in the hands of an elite and increasingly powerful few. Similarly, libel laws and precedents have also shifted the balance towards the media in what was unquestionably an overly claimant-friendly environment in the UK.
I have witnessed various efforts to regulate, by statute and by self-regulation, this uniquely powerful sector. Indeed, the press is already heavily regulated. As well as the form of self regulation which is to follow, a new Defamation Act is completing its passage through Parliament. There will inevitably be an impact on the work which media lawyers have to fulfil over the next year and beyond. Firms with a media law capacity have already had to start to adapt to the new landscape, or drop out of the area altogether.
The changing environment represents an opportunity to those with leaner practices and who do not necessarily charge the huge rates of city firms. There will also be a benefit to those who take a more client-focused approach in terms of seeking early settlement, wherever possible.
Is there anything else you would like to add?
The traditional broadcast and print media continues to face a great challenge from the availability online of free content. A key to survival is to distinguish the content available in reputable media from the information placed on the internet, including social media such as Twitter. Responsible media results in quality content: information which is factually reliable and fair. Content on the internet which is not from reliable sources, including rumours and speculation carried on Twitter, should be regarded as less valuable by its readers. If the media in the UK allows a truly independent system of regulation, in which the public have full confidence, this will cause readers to understand the greater value in paid-for content. LM
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